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Richard, Attorney
Category: Employment Law
Satisfied Customers: 53706
Experience:  Attorney with 29 years of experience.
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I have been asked to sign an NDA and NCA prospective new

Customer Question

I have been asked to sign an NDA and NCA for a prospective new employer. My challenge is that the NDA has a restriction period of 12 mos. where I cannot work for a competitor (they can choose who is a competitor), I cannot work or solicit work for any customer of theirs (regardless of whether or not I directly supported them), the NDA passes onto my heirs should I die, and there is a clause that states I can make a living given the constraints. Collectively I believe this NDA forces me into semi-retirement in my field regardless of the reasons I leave this company.
Submitted: 5 months ago.
Category: Employment Law
Expert:  Richard replied 5 months ago.
Hi there. My name is ***** ***** I look forward to helping you. Can you provide me a bit more information? Can you tell me in what field you work and what specifically you do? Thanks.
Customer: replied 5 months ago.
Information Technology. The position is for a Director in a Project Management Office. I will be interacting with teams within my company that provide services and of course with their clients that receive outsourcing services.
Expert:  Richard replied 5 months ago.
Good morning. Are there any geographical restrictions? Or, just any competitor?
Customer: replied 5 months ago.
Any competitor that uses global resourcing.
Expert:  Richard replied 5 months ago.
Thank you! First, this is not likely to be enforceable as it's far too broad. Although non-compete agreements are not enforceable in many states, NY is not one of them. Non-compete agreements are enforceable in NY. BUT, that does not mean that a particular non-compete agreement is enforceable. To be enforceable, a non compete agreement must be reasonable in both scope of time and area. Additionally, the court will balance the proprietary need of the employer to protect its business with the employee's ability to earn a living in his or her chosen profession. Further, non compete agreements are expensive to enforce and, while they are enforceable, courts tend to look for fairly egregious behavior on the employee's part to uphold them. To be enforced, non compete agreements must be narrowly written, fair to employer and employee, and be sound public policy. To be considered a reasonable restrictive covenant, the non-compete must be limited as to both time and geography. For example, the non-compete can't prohibit you from working in your field in all 50 states for the next 25 years. This would be unreasonable. Additionally, to be enforceable, the employer must demonstrate that it has a legitimate business interest in limiting your ability to compete. The employer's desire to limit competition is not a legitimate purpose. This provision has no geographical limits and leaves far too much discretion (i.e., they define creditor) in the employer's hands. Also, the NDA being binding on your heirs is ridiculous; you're the only one signing this. Thank you so much for allowing me to help you with your questions. I have done my best to provide information which fully addresses your question. If you have any follow up questions, please ask! If I have fully answered your question(s) to your satisfaction, I would appreciate you rating my service as OK, Good or Excellent (hopefully Good or Excellent). Otherwise, I receive no credit for assisting you today. I thank you in advance for taking the time to provide me a positive rating!