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How restrictive can employee non-competes be in New York and…

How restrictive can employee non-competes...
How restrictive can employee non-competes be in New York and mainly, what provisions or terms doe they need to build a basis for enforcement IF infringed.
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Answered in 1 hour by:
3/10/2018
Attorney Wendy
Category: Employment Law
Satisfied Customers: 1,189
Experience: Member at Keefer & Keefer LLC
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Hello. My name is ***** ***** I am an attorney. I am working on a response to your question and should have it to you shortly.

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The enforceability of non-competes in New York is extremely limited. So much so that the Attorney General of the state has taken action against companies that use them in inappropriate circumstances and with restrictions that are too far reaching. According to the state's attorney general, "unless an individual has highly unique skills or access to trade secrets, non-compete clauses have no place in a worker's employment contract." Thus, the first requirement for enforceability would be that the employee is highly skilled or has access to confidential trade secrets. Assuming that is the case, the agreement would also need to fall into the following or meet the following requirements: (1) the agreement is necessary to protect a legitimate business interest (e.g., special skills the employee acquired while employed with the company, trade secrets); (2) reasonable as to how long they limit the employee and reasonable as to the geographic area in which the employee cannot compete for that time period (e.g., if the company only does business in New York, it would be unreasonable to enforce a non-compete that tried to stop the employee from working for a similar company in Nevada); (3) the agreement cannot cause harm to the public in general (e.g., if a doctor signed a non-compete not to compete with his current medical practice, which only has 2 doctors and is only 1 of 2 practices in a town, leaves that practice, the inability to continue practicing medicine in that area would harm the public by depriving them of adequate health care); and (4) the agreement cannot be unduly burdensome on the employee (e.g., there has to be some opportunity for the employee to make a living using his set of skills). If the agreement fails in any of these, it will only be enforceable if a court asked to enforce it does what is called blue pencil the agreement - that is, revise the agreement to remove and revise any provisions that make it unenforceable (e.g., change the time period to something shorter or the geographic region to something smaller).

I hope this helps. If you need further assistance, please reply to this email. If I answered your question and provided excellent service, I would greatly appreciate your 5 star rating at this time.

Please note: This information is for educational purposes only and is not legal advice. No course of action is being proposed and no attorney-client relationship or privilege has been formed as a result of this conversation.

Attorney Wendy
Category: Employment Law
Satisfied Customers: 1,189
Experience: Member at Keefer & Keefer LLC
Verified
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DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

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