Non-Compete Agreement Negotiation: How to Negotiate a Non-Compete Clause, and Are Non-Competes Enforceable
The non-compete is the one clause in your offer that decides what you are allowed to do after you leave, and it is usually the least negotiated. Counteroffer reads the offer, flags the restrictive covenants, and drafts the email that narrows them before you sign.
Coaching, not legal or financial advice.
What are you negotiating?
Your offer or current pay
Market-rate band
Talking points
Email template
Timing
Coaching, not legal or financial advice.
Direct answer
A non-compete agreement is a clause that restricts where you can work after leaving an employer, and in 2026 it is governed entirely by state law. The Federal Trade Commission removed its nationwide ban from the Code of Federal Regulations on February 12, 2026 after losing in court, so there is no federal rule. Four states, California, Minnesota, North Dakota and Oklahoma, void employee non-competes almost entirely, and Washington joins them on June 30, 2027 under a law that retroactively voids agreements already signed. Roughly a dozen more states only allow a non-compete above a salary threshold, which ranges from $30,160 in New Hampshire to $162,164 in the District of Columbia. Everywhere else the clause is enforceable only if a court finds its duration, geography and scope reasonable, which is exactly why the three of them are negotiable. Ask for a shorter term, a smaller radius and a narrower definition of competing work, in writing, before you sign. This is career coaching, not legal advice, so have an employment attorney in your state read the final agreement.
The problem
People negotiate hard on base salary, sign the restrictive covenants without reading them, and find out two years later that the clause they skipped is the reason they cannot take the job they actually want.
How Counteroffer handles it
Counteroffer treats the restrictive covenants as part of the compensation package, because they are. It reads what you were sent and separates the three clauses people routinely confuse: the non-compete, which limits where you work; the non-solicitation, which limits who you can approach; and the confidentiality clause, which limits what you can use. Then it flags the terms that decide how much the restriction actually costs you: the duration, the geographic radius or customer scope, how broadly competing work is defined, whether you are paid during the restricted period, and whether the clause still binds you if the company lets you go. It drafts one warm, specific email asking to narrow the parts that matter most, and tells you which asks employers usually grant without pushback. It prepares the ask; the enforceability question in your state belongs to an employment attorney.
▲ the numbers
Where non-competes are void, capped by salary, or merely reasonable, in 2026.
Whether your non-compete is worth negotiating hard or worth ignoring depends almost entirely on the state whose law governs it. These are the 2026 figures, including the salary floors below which a non-compete simply does not apply to you. Check the choice-of-law clause too, because employers often try to apply the law of a friendlier state.
| State or category | What the law does in 2026 | What it means for your offer |
|---|---|---|
| California, Minnesota, North Dakota, Oklahoma | Employee non-competes are void almost entirely. North Dakota has banned them since 1865 and Oklahoma since 1890. Minnesota voids any agreement entered into on or after July 1, 2023. California also voids out of state non-competes applied to California workers | The clause is largely unenforceable against you. Sign the offer if the rest of it works, but ask for the clause to be struck anyway so nobody has to litigate it later |
| Washington | Engrossed Substitute House Bill 1155, signed March 23, 2026, makes nearly all noncompetition covenants void and unenforceable from June 30, 2027, regardless of when they were signed. Employers must notify affected current and former workers by October 1, 2027 | A Washington non-compete signed today has a hard expiry date. Narrowly drawn non-solicitation clauses and sale of business non-competes survive, so read which one you were actually given |
| District of Columbia | Non-competes are permitted only for employees earning at least $162,164, effective January 1, 2026 | Below that figure the clause does not apply to you. Above it, negotiate the term and scope normally |
| Colorado | Non-competes require compensation of at least $130,014, and non-solicitation agreements at least $78,008.40, effective January 1, 2026. Colorado also has a near categorical ban for healthcare practitioners | Two separate thresholds. You can be over the line for a non-solicit and under it for a non-compete at the same time |
| Washington (until June 30, 2027) | Current thresholds are $126,858.83 for employees and $317,147.09 for independent contractors | Contractors get a much higher floor. If you are a 1099 worker under roughly $317,000, the clause is unenforceable today and void statewide in 2027 |
| Oregon | Non-competes require compensation of at least $119,541, and are limited to 12 months | The 12 month cap is statutory, so any longer term in your draft is already unenforceable and should be corrected before you sign |
| Virginia | Non-competes are barred for low wage employees, defined for 2026 as under $1,507.01 per week, about $78,364.52 a year. Since July 1, 2026 Virginia also bars enforcement where the employer terminates without cause and provides no severance | The without cause rule is the useful one. If you are laid off with no severance, the restriction generally does not follow you |
| Illinois | Non-competes require earnings above $75,000 and non-solicitation agreements above $45,000. Both thresholds next increase in 2027 | Two thresholds again. Confirm which covenant you were given before deciding whether it binds you |
| Maine | Non-competes require earnings of at least $63,840 | Below the floor the clause does not apply |
| Maryland | The statewide threshold is $49,920 from July 1, 2026, with Montgomery County at $55,068. Maryland has also passed profession specific restrictions covering certain healthcare workers | Check the county figure as well as the state one |
| Rhode Island | Non-competes require earnings of at least $39,900 | A relatively low floor, so most salaried professionals are covered by the clause |
| New Hampshire | Non-competes require earnings of at least $30,160 | The lowest threshold in the country. Assume the clause applies and negotiate it on the merits |
| Healthcare workers in several states | Arkansas, Indiana, Utah and Colorado have adopted categorical or near categorical bans for healthcare practitioners. Montana has prohibited non-competes with all licensed physicians since January 1, 2026. Indiana bars physician non-competes with hospitals and hospital systems as of July 1, 2025. Pennsylvania, Maryland and Texas set conditions rather than a full ban | If you are a clinician, the clause in your draft may already be void. Ask which statute the employer thinks applies, and start from the specialty pages for <a href="/use-cases/physician-offers" class="text-counter hover:underline">physician contract negotiation</a> or <a href="/use-cases/veterinarian-offers" class="text-counter hover:underline">veterinary associate contracts</a> |
| Every other state | Non-competes are enforceable only if a court finds the duration, geographic scope and range of restricted activity reasonable, and finds a legitimate business interest behind them | Reasonableness is the whole ballgame. Every hour you cut off the term and every mile you cut off the radius makes the clause both cheaper for you and more likely to survive review, which is why employers often say yes |
These figures change every January, and several states index them to inflation or to the minimum wage, so verify the current number before you rely on it. This table describes general state law and is not legal advice about your agreement. The governing state is set by the choice of law clause in the contract, which is not always the state you live in, and courts do not always honor it.
the stat everyone quotes
"I already signed it, so there is nothing left to negotiate."
Wrong twice over: signed non-competes get renegotiated all the time, and many of them were never enforceable to begin with.
A non-compete is a contract term, and contract terms get amended. Employers release people from non-competes routinely, usually because enforcing one is expensive, slow, and produces a former employee with a grievance and a lawyer. If you are leaving on decent terms and the new role is not a genuine competitive threat, a written release or a narrowed version is a normal thing to ask for on the way out. Ask for it in writing, and get the release in writing too, because a manager saying "we would never enforce that" is worth nothing once that manager leaves.
The bigger point is that a signature does not make a clause enforceable. Since the FTC rule was removed in February 2026 the question is pure state law, and state law voids an enormous number of these agreements. If you earn under your state threshold, the clause does not apply. If you work in California, Minnesota, North Dakota or Oklahoma, it is largely void regardless of what you signed. If you are in Washington, it dies on June 30, 2027 even though you already signed it. And in the remaining states, a court will strike a clause it finds unreasonable in duration, geography or scope.
What that means practically: read the clause before you assume you are trapped, find out which state law governs it, and check your earnings against the threshold in that state. Then negotiate anyway. The best moment is before you sign, when the employer wants you and has every reason to be accommodating. The second best moment is when you resign, when they want an orderly handover. The worst moment is after you have accepted a competing offer, which is exactly when most people first read the clause.
▲ how to do it
How to negotiate a non-compete clause, step by step.
Work out which of the three clauses you were actually given
People say non-compete when they mean one of three different restrictions. A non-compete stops you working for a competitor. A non-solicitation stops you approaching customers or colleagues, and is far more common and far more defensible. A confidentiality or non-disclosure clause stops you using company information, and is almost always reasonable. Many offers contain all three. Object to the one that actually limits your career, and be gracious about the other two.
Find the choice of law clause and check the salary threshold
Somewhere near the end of the agreement is a sentence naming the state whose law governs it. That sentence decides everything on the table above. Then compare your total compensation to that state threshold. If you are under it, say so politely and ask for the clause to be removed as inapplicable, which is a much easier conversation than arguing about fairness.
Attack the duration first, because it is the cheapest ask
Duration is the term employers concede most readily, because a shorter restriction still protects the customer relationships and information they are actually worried about. Twelve months is a common landing point, six is achievable in many roles, and Oregon caps it at twelve by statute. A twenty four month restriction on a role with a three month sales cycle is not protecting anything, and saying that out loud usually works.
Narrow the geography and the definition of competing work
A nationwide or worldwide radius in a role you perform from one city is the kind of overreach courts dislike. Ask for the actual territory you covered. Then look at how competing business is defined, because the broad version can technically cover the entire industry you have spent a decade in. Ask for it narrowed to the specific products, services or customer segment you personally worked on.
Ask who pays for the restricted period
If the company wants the right to keep you out of the market for a year, ask them to fund it. Garden leave, continued salary during the restricted period, or a lump sum are all live asks, and several states already require some form of consideration. If you are on the way out rather than on the way in, the same ask belongs in your severance package negotiation. Even where the answer is no, asking reframes the clause as something with a price rather than boilerplate, and that reframing is often what gets the duration cut.
Add the termination carve out, then get it all in writing
The most valuable single sentence you can add is that the non-compete does not apply if the company terminates you without cause or lays you off. Virginia now requires roughly this by statute, which makes it a reasonable and increasingly standard ask. Put every agreed change into the signed document itself, not into an email thread, and have an employment attorney in the governing state read the final version before you sign. Raise it alongside the number rather than after it, using the same approach as the rest of your job offer negotiation.
copy and paste
The email that narrows a non-compete before you sign.
Send this after you have read the full agreement, not just the offer letter. It concedes the clauses worth conceding, which makes the one real ask much easier to grant, and it makes clear you intend to sign.
Subject: Two items in the agreement before I sign Hi [Name], Thank you again for the offer. I am excited to join [Company] and I am ready to sign. Before I do, I would like to settle two items in the restrictive covenants. I have no concerns about the confidentiality clause or the non-solicitation clause, and I am happy to sign both as drafted. On the non-compete, I am asking for two changes. First, the term: I would like it reduced from [current] months to [proposed] months, which still covers the customer relationships the clause is there to protect. Second, the scope: as drafted it covers [broad description], and I would like it narrowed to [the specific products, services, or territory you actually work on]. I would also ask that the clause not apply if [Company] ends my employment without cause. Happy to talk any of this through, and I am ready to sign as soon as it is settled. Best, [Your name]
Swap the bracketed parts for your own numbers. Counteroffer writes this for your exact offer.
▲ frequently asked
Non-compete questions people actually ask.
Are non-competes enforceable?
It depends entirely on your state, because there is no federal rule. The FTC removed its nationwide ban from federal regulations on February 12, 2026 after courts struck it down. California, Minnesota, North Dakota and Oklahoma void employee non-competes almost entirely, and Washington does so from June 30, 2027. About a dozen states allow them only above a salary threshold. Elsewhere a court enforces the clause only if its duration, geography and scope are reasonable.
Are non-competes legal?
Yes in most of the United States, and no in a handful of states. They are legal and enforceable in the majority of states subject to a reasonableness test, and they are illegal or void as applied to employees in California, Minnesota, North Dakota and Oklahoma, with Washington joining in 2027. Roughly a dozen other states make them illegal below a salary threshold. The federal ban never took effect and was formally removed in February 2026.
Can you negotiate a non-compete?
Yes, and it is one of the more winnable asks in an offer negotiation. Employers regularly agree to shorten the duration, shrink the geographic radius, narrow the definition of competing work, and add a carve out so the clause does not apply if they terminate you without cause. The best time to ask is before you sign, while the company is still recruiting you. Put every agreed change into the contract, not into an email.
How do you get out of a non-compete agreement?
The realistic routes are: ask the employer for a written release, which they grant more often than people expect; show that your earnings fall below your state salary threshold; show that the governing state voids the clause entirely; or argue the term, radius or scope is unreasonable. Some clauses also lapse automatically if the employer breaches the contract or terminates you without cause. Our walkthrough of how to get out of a non-compete covers each route in detail. Talk to an employment attorney in the governing state before you act.
Does a non-compete hold up if you are fired?
Sometimes, and increasingly not. In most states a non-compete can still apply after an involuntary termination, but that is changing. Virginia has barred enforcement since July 1, 2026 where the employer terminates without cause and pays no severance, and courts in several other states are reluctant to enforce a restriction against someone the company chose to let go. This is precisely why a termination carve out is worth negotiating into the contract up front.
What is a non-compete clause?
A non-compete clause is a contract term that restricts you from working for a competitor, or starting a competing business, for a defined period after your employment ends. It typically specifies three things: how long the restriction lasts, the geographic area or customer set it covers, and what counts as competing activity. Those three variables determine both how much it costs you and whether a court will enforce it.
How long is a typical non-compete?
Six to twenty four months is the usual range, and twelve months is the most common landing point in professional roles. Oregon caps non-competes at twelve months by statute. Longer terms appear in senior executive and physician contracts, but length works against the employer at review time, because courts weigh duration heavily when deciding whether a restriction is reasonable.
What is the difference between a non-compete and a non-solicitation agreement?
A non-compete restricts where you can work. A non-solicitation restricts who you can approach, usually customers, and often colleagues as well. Non-solicitation clauses are narrower, far more likely to be enforced, and several states set a lower salary threshold for them, such as $78,008.40 in Colorado against $130,014 for a non-compete. In practice a non-solicit is usually worth signing while a broad non-compete is worth negotiating.
▲ sources
- Federal Trade Commission: Noncompete Rule
- Federal Register: Removal of the Non-Compete Rule to Conform to Federal Court Decisions (February 12, 2026)
- Epstein Becker Green: 2026 State Noncompete Salary Threshold Changes
- Faegre Drinker: Washington State Bans All Noncompete Agreements Effective June 30, 2027
- Littler: States Continue to Limit Restrictive Covenants for Health Care Professionals
Last updated August 2026. Figures are estimates and market data changes; verify anything you plan to quote in a negotiation.
▲ what it uses
The features behind non-compete agreements.
▲ more use cases
Walk in knowing your number.
Counteroffer is educational career coaching, not legal, financial, or HR advice.