You're a freelance developer who works primarily with B2B SaaS companies. A client sends a contract with a non-compete that prevents you from working with "any entity in the software industry" for two years after the engagement ends. That's your entire market.
Non-competes for freelancers are common, often overreaching, and — in many jurisdictions — unenforceable. But "unenforceable" doesn't mean harmless.
The difference between non-compete and non-solicit
These two clauses are often bundled together but are distinct:
Non-compete: Prevents you from working with competitors or in a particular industry during or after the engagement. Broad ones can block you from your entire market.
Non-solicit: Prevents you from actively approaching the client's customers, employees, or other contractors. Much narrower and generally more reasonable.
Most clients will accept a non-solicit while dropping the non-compete entirely — the non-solicit protects their legitimate interest (you don't poach their clients or staff), while the non-compete just protects their competitive advantage at your expense.
Are non-competes enforceable against freelancers?
It depends on jurisdiction, but the trend is toward unenforceability:
California: Non-competes are almost entirely unenforceable under California Business and Professions Code § 16600. Even if your client is based in California, a California court is unlikely to enforce one against you.
UK: Non-competes (called "restrictive covenants") are enforceable only if they protect a "legitimate business interest" and go no further than necessary. Broad industry-wide bans rarely survive UK court scrutiny.
FTC rule (US, 2024): The FTC issued a rule banning most non-competes, though it's been subject to legal challenge. The direction of travel is toward non-enforceability.
Most other US states: Courts apply a "reasonableness" test — geography, duration, and scope must be proportionate to the interest being protected. An industry-wide, multi-year ban on a freelancer typically fails this test.
Why "unenforceable" still matters
Even if a court would strike down the clause, that's cold comfort when you're deciding whether to take a new project. A client can threaten litigation knowing you don't have the resources to defend it. The chilling effect is real even when the clause is legally toothless.
The second problem: governing law. Your contract probably specifies which state or country's law applies. If it says "governed by the laws of [state where non-competes are enforceable]," you're not automatically protected by California law even if you live there. Courts will generally apply the chosen law if there's a reasonable basis for the choice.
What to look for
Red flags in non-compete language:
Broad scope: "Any entity that competes with Client" or "any business in [Client's industry]." These capture most of your potential market.
Long duration: More than 12 months post-engagement is aggressive for a freelancer. 24 months is overreaching.
Geographic reach: "Worldwide" or "in any market where Client operates" are flags.
No compensation: Unlike employment contracts, freelance non-competes typically offer no additional pay for the restriction. You're giving up competitive optionality for free.
Redlines that work
Option 1: Delete the non-compete entirely, keep non-solicit.
"During the term of this Agreement and for 12 months thereafter, Contractor shall not directly solicit Client's customers or employees that Contractor was introduced to through this engagement."
Option 2: Narrow it to direct competitors only.
"During the term of this Agreement only, Contractor shall not provide substantially similar services to the three direct competitors listed in Exhibit B. This restriction expires on the last day of the engagement and does not apply thereafter."
Note: "during the term only" is the key phrase. Post-engagement non-competes are where the real risk lies — in-term restrictions are much more defensible for the client and much less harmful to you.
ClauseCheck flags non-compete clauses and scores their severity based on scope, duration, and geographic reach — with suggested redlines tailored to your role.
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