Non-compete questions to ask candidates, and what the law says in 2026

Ask every candidate for a role where it could matter one plain question early in the process: "Have you signed any agreement, such as a non-compete, non-solicit or confidentiality agreement, that could limit your ability to take this role or do any part of it?" Then capture the type, the length, the geography and the state, and hand the question of enforceability to the hiring company's counsel. As of September 2026 there is no federal non-compete ban in force; the answer depends on state law and the agreement itself.

This page gives the questions to ask and what the answers mean, the FTC rule's status, examples of state rules recruiters run into, and scripts for the conversations that follow. It fits into a screen alongside the questions in phone screen questions for recruiters, and it is the part of the offer stage that the offer call script does not cover.

Where federal law stands

• The FTC rule is not in effect. The FTC's Noncompete Rule page says a district court order of August 20, 2024 stopped the FTC from enforcing the rule. On September 5, 2025, the Commission voted to dismiss its appeals and accede to the vacatur.
• The FTC still acts against specific agreements. On September 10, 2025, the Chairman sent warning letters to healthcare employers and staffing firms urging them to review non-competes and other restrictive agreements. On April 15, 2026, the FTC announced a proposed consent order requiring Rollins, Inc. to stop enforcing non-competes against more than 18,000 employees, under Section 5 of the FTC Act.
• So state law decides most cases. A candidate's agreement is judged under the law the agreement or the courts apply, and that varies widely.

Staffing firms should note the September 2025 letters were addressed partly to them. If your own contractors or internal recruiters sign non-competes, that is worth reviewing with counsel separately from this page.

Examples of state rules you will meet

Several other states set earnings thresholds, ban non-competes for particular occupations such as physicians or broadcast employees, or require notice periods. Treat this table as a reason to ask, not as an answer.

The questions to ask

Ask these in the screen for any role where the candidate would work for a competitor, serve the same clients or use the same specialist knowledge. Ask every candidate for the role the same way.

RESTRICTIVE AGREEMENTS — screen questions

1. "Have you signed any agreement with your current or a past employer
    that could limit your ability to take this role or do part of it?
    For example a non-compete, a non-solicit of clients or staff, or a
    confidentiality agreement."

If yes:
2. "What kind is it: not working for competitors, not contacting
    clients, not hiring former colleagues, or confidentiality?"
3. "How long does it last after you leave, and does it cover a
    particular area, list of clients or type of work?"
4. "When did you sign it, and was it at hiring, at a promotion, or as
    part of a bonus, equity or severance agreement?"
5. "Which state were you working in when you signed it, and which
    state's law does it say applies, if you know?"
6. "Has your employer ever mentioned enforcing it, with you or anyone
    who left?"
7. "Would you be able to share the agreement with the hiring company's
    lawyer if they ask? Only if the agreement allows it."

Always:
8. "Just so it's clear: we don't want any confidential information,
    documents or client lists from your current employer, now or after
    you join."

How to read the answers

What recruiters should not do

• Do not give legal opinions. "That will never hold up" is advice, and a candidate who resigns on the strength of it has a claim against someone.
• Do not ask for confidential material, including the employer's customer list, pricing, pipeline or the terms of a confidential agreement, to "see how big the risk is."
• Do not suggest ways around the agreement, such as a job title that avoids the restricted area on paper.
• Do not drop the candidate silently because an agreement exists. Tell the hiring company and let them decide with counsel.
• Do not record it as a judgment. "Has 12-month non-solicit (clients), signed 2023, Texas" is a fact. "Legal risk, avoid" is a conclusion you are not qualified to reach.

Scripts for the conversations that follow

Telling the hiring company

Before you interview [candidate]: they have a [non-solicit / non-compete]
with [current employer]. What they told me: [type], [length], [area or
clients], signed [year] in [state], [any enforcement history]. They are
willing to share the agreement with your counsel [if permitted]. I have
not given them any view on whether it is enforceable. How would you like
to handle it: proceed, proceed with counsel review before final round,
or pause?

When the candidate asks "is mine enforceable?"

"I can't tell you that, and I'd be doing you a disservice if I guessed.
It depends on the state and exactly what you signed. The company's
lawyer will look at it from their side, and it's worth having a short
consult with an employment lawyer of your own before you resign."

At the offer stage

Two points belong in the offer conversation. First, the hiring company's own agreements: in Massachusetts, a covered non-compete must be provided by the earlier of the formal offer or 10 business days before the start date, so a new-hire agreement cannot be sprung on someone on day one. Second, the candidate's existing restrictions: confirm the hiring company's decision in writing, and repeat that the candidate should bring nothing confidential. Counteroffers often include new or refreshed restrictive agreements; see the counteroffer conversation script.

Agencies and submittals

Include known restrictions in the logistics section of the submittal, stated as facts. A client who learns about a non-solicit after an offer, from the candidate's former employer's lawyer, rarely blames only the candidate. Keep what the candidate told you out of anything broader: do not repeat details of the former employer's clients or business that came up while explaining the agreement.

If you use an interview transcription tool, this part of the screen is one where accuracy matters and discretion matters more. Interview Signal keeps transcripts on the recruiter's computer and lets you pause capture with one click; with any tool, pause if the candidate starts describing their employer's confidential business in detail.

A checklist

• The restrictive agreement question is in the screen for every role where it could matter.
• Answers recorded as facts: type, length, area or client scope, date signed, state, enforcement history.
• The hiring company told before interviews, with the decision left to them and their counsel.
• No opinion given to the candidate on enforceability; candidate pointed to their own lawyer.
• Candidate told in the screen and again at the offer that no confidential information is wanted.
• The hiring company's own new-hire agreements checked against state timing rules before the offer goes out.
• Current FTC and state positions re-checked before relying on this page; both have changed several times since 2024.