Non-Compete Agreements in New York
Jul 20, 2020
| By Ottinger Employment Lawyers
| Read Time: 13 minutes
Important Information About Non-Compete Agreements in New York New York non-compete agreements are widely misunderstood and many of them are unenforceable. This is because New York strongly disfavors non-compete agreements and courts will not enforce them unless a company can overcome a presumption of unenforceability. New York non-competition law attempts to strike a balance to protect an employer’s legitimate business interests, an employee’s ability to earn a living, and the public interest in free trade. Speak with an Employment Attorney About Your Non-Compete Agreement If you are looking for immediate help with a non-compete issue complete the short form below to get started on your consultation. We review your non-compete agreement and then meet with you over the phone. We will assess the agreement’s enforceability and suggest strategies. Call 347-492-1904 to speak with Robert Ottinger if you have questions regarding your non-compete agreement in New York. Locked into a Non-Compete in NY? Here are Five Ways Your Can Potentially Defeat Your New York Non-Compete Agreement Are you bound by a New York non-compete agreement? Are you trying to move from one employer to another in the same industry? A non-compete agreement can ruin your plans. The Ultimate Guide for Executives This article provides a brief overview of tactics that can beat a non-compete agreement. If a non-compete agreement is causing problems for you, it may be possible to invalidate it or reduce its impact. We offer a non compete review & consultation to help you understand your options. First, a little background on New York non-compete agreements. These agreements were once limited to high-level company executives who had access to company trade secrets or who developed unique skills while employed by the company. Over the past decade, however, companies have started asking rank and file employees to sign non-compete agreements. As a result, employees at all levels find themselves constrained by these agreements. It’s estimated that one in five people today are bound by a non-compete clause. The overuse and abuse of non-compete agreements are also creating a backlash against them. Last year, New York Attorney General Eric Schneiderman prosecuted three companies for abusing non-compete agreements. According to the 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.” The tide has turned against non-compete agreements in New York. Courts are now more likely than ever to void these agreements. New York Non Compete Issue? Get a consultation with Ottinger Employment Lawyers. What is a Non-Compete Agreement? A non-compete agreement is a clause typically inserted into an employment or separation agreement that prohibits a person from working for a competitor of their employer for a period of time. A non-compete agreement is a contract between a company and an employee that prevents the employee from working for a competing business during, and after, the term of employment. These clauses are typically inserted in employment agreements along with other restrictions such as non-solicitation agreements and trade secret obligations. A non-compete agreement can limit your ability to move around in your industry. By signing one, you effectively agree that if you stop working for your employer, you will leave your industry and abandon your skills and experience for a period of time that typically ranges from six months to two years. New York non-compete agreements are widely misunderstood and many of them are unenforceable. This is because New York strongly disfavors non-compete agreements and courts will not enforce them unless a company can overcome a presumption of unenforceability. In the case of Purchasing Associates, Inc. v. Weitz, 13 NY2d 267, 271, (1963) the court held that “public policy considerations militate against sanctioning the loss of a person’s livelihood through enforcement of [non-compete agreements].” A company seeking to enforce a non-compete agreement against an employee faces an uphill battle. New York non-competition law attempts to strike a balance to protect an employer’s legitimate business interests, an employee’s ability to earn a living, and the public interest in free trade. This law has developed over centuries and the modern version is based on a three-part test to determine if the restraint is reasonable. A non-compete agreement is considered reasonable only if it: (1) “is no greater than required for the protection of the legitimate interest of the employer, (2) does not impose an undue hardship on the employee, and (3) is not injurious to the public.” BDO Seidman v Hirshberg (1999). A violation of any one of the three factors renders a non-compete agreement invalid. Courts are cautioned to enforce non-compete agreements only to “the extent that it is reasonable in time and area, necessary to protect an employer’s legitimate interests, not harmful to the general public and not unreasonably burdensome to the employee.” What does all of this mean for an executive bound by a non-compete agreement? It means that courts will not enforce the agreement against you unless it is clear that your former employer’s interests will be harmed if you are permitted to work for a competitor. See Chapter 2 below for an explanation. Here is a typical non-compete agreement: “Employee shall not, whether directly or indirectly, alone or as a partner, joint venturer, officer, director, employee, consultant, agent, independent contractor or stockholder of any company or business anywhere in the United States, except on behalf of the Company or with the company’s written consent: (a) engage in the Business of the Company or in any business that is in competition with the Business of the Company; (b) be employed by, consult for or provide any services to any person or entity that is engaged in the Business of the Company or is engaged in any business that is in competition with the Business of the Company; (c) solicit or accept the same or substantially related business of any customer or account of the Company or induce any customer or account of the Company to cease doing business with the Company or in any manner […]
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103 Laws Protecting California Employees
Jun 17, 2020
| By Ottinger Employment Lawyers
| Read Time: 13 minutes
If you want to find a comprehensive list of laws protecting California employees, then this post is the place for you! Below you will find 103 laws that offer legal protection to employees working in California. If you are looking for a specific type of employment law, you can click on the categories listed below to jump to that section. Check it out! Wage and Hour Minimum Wage and Overtime IWC Order MW-2019: As of January 1, 2020, employers with 26 or more employees must pay their California employees $13 per hour. Additionally, employers with 25 or fewer employees must pay their California employees $12 per hour. Cal. Labor Code Section 510: Non-exempt employees must receive overtime for eight or more hours worked in a single day. Also, employers owe overtime for more than 40 hours worked in a workweek. Employers must pay double time for hours worked in excess of 12 in a day or eight on the seventh day of any workweek. Cal. Labor Code Section 1194: Any employee who is receiving less than the legal minimum or overtime wage can file a lawsuit. This lawsuit can be for unpaid wages, interest, and attorney’s fees. San Francisco Administrative Code, Section 12R (For San Francisco Employees): Any employee who performs two or more hours of work in a week for an employer in San Francisco is entitled to San Francisco’s specified minimum wage. As of July 1, 2020, this minimum wage will be $16.07. Meal and Rest Breaks Cal. Labor Code section 226.7: Non-exempt employees must receive rest breaks of at least 10 minutes for every four hours of work. If rest breaks are not provided, then an employer must pay the employee one hour of pay for each day that the rest break was not offered. Cal. Labor Code Section 512: Non-exempt employees that work more than six hours in a day must receive a meal period by the fifth hour. Additionally, this meal period must be at least 30 minutes long. Along with this, employers must offer additional meal periods for employees who work over 10 hours. Record-keeping Cal. Labor Code Section 1198.5: Any current or former California employee, with limited exceptions, has the right to receive a copy of his or her personnel records. 29 CFR Section 516.2: All employers must maintain accurate payroll records for their employees. For instance, these records must contain the employee’s rate of pay, hours worked, overtime hours, and deductions. Cal. Labor Code Section 226: An employer must provide employees with accurate and itemized wage statements. Cal. Labor Code Section 353: An employer must keep accurate records of all tips received. Cal. Labor Code Section 1174: Employers must keep an employee’s payroll records on file for no less than three years. Along with other information, these records must include the ages of any minors who worked for the employer. Los Angeles Ordinance No. 184320, section 188.03(B) (For Los Angeles Employees): Employers within the city of Los Angeles must maintain payroll records for four years. Cal. Labor Code Section 432.3: Employers cannot ask prospective employees for salary history. Employers must also offer prospective employees with pay scale information upon request. Wages Cal. Labor Code Section 2802: Employees are entitled to reimbursement of any necessary business-related expenses that they make. As a result, employers cannot pass operational costs onto their employees. Cal. Labor Code Section 201: Employers must pay wages immediately to an employee who is discharged. Cal. Labor Code Section 202: Employees who quit are owed wages within 72 hours after quitting. If the employee gave 72 hours’ notice of quitting, then the employer must pay the wages at the time that the employee quits. Cal. Labor Code Section 203: Employers must pay employees wages owed when their job ends. If they do not, the employee is entitled to payment for each day he or she is not paid owed wages. Additionally, this penalty continues for a maximum of 30 days, unless payment is submitted or legal actions commence. Cal. Labor Code Section 204: California employees, with some exceptions, must be paid at least twice a month. Also, employers must establish a regular payday for their employees. Cal. Labor Code Section 231: If an employer requires an employee to have a driver’s license for the job, then the employee must pay for any medical exams associated with obtaining that license. However, this does not apply to medical exams taken prior to the employee’s application. Cal. Labor Code Section 232(a): An employer cannot prevent an employee from disclosing the amount of his or her wages. Cal. Labor Code Section 351: Generally, an employer cannot withhold or take a portion of an employee’s tips. Cal. Labor Code Section 2800: An employer must compensate an employee for losses incurred due to the employer’s “want of ordinary care.” So, employers must take reasonable precautions to prevent an employee’s losses. Discrimination and Harassment General Protections Title VII of Civil Rights Act of 1964: This federal law makes it illegal for an employer to discriminate on the basis of race, color, national origin, sex, and/or religion. Cal. Gov. Code Section 12940(a): This law, also known as FEHA, offers protections from discrimination to certain classes of employees. Among these classes are race, religion, sexual orientation, physical or mental disability, gender identity, age, and veteran status. Cal. Gov. Code section 12940(j): An employer cannot harass an employee, applicant, or intern because the employee is a member of any of the protected classes in Section 12940(a). Cal. Gov. Code Section 12990: This law applies to workers contracted by the state for public work. These workers cannot be discriminated against for any of the protected classes listed in FEHA. Cal. Labor Code Section 1735: A contractor for public works projects cannot discriminate employment of people to work on public works on any basis listed in FEHA. Hiring and Firing Cal. Labor Code Section 432.7(a): An employer cannot use any record of arrest or detention that did not result in a conviction for […]
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Defeating a Non-Compete Agreement
Jun 9, 2020
| By Ottinger Employment Lawyers
| Read Time: 2 minutes
In this post, I’m going to show you EXACTLY how to get out of a New York non-compete agreement. In fact, this is the exact process we use to help all of our clients get out of non-compete agreements. If you want to get out of a New York non-compete agreement, you’ll like this post. The graphic above makes it easy to see how this works. You can also visit FindLaw to learn more about non-compete agreements in detail. Let’s dive right in …. 1. Fired Without Cause Were you fired without cause? If you were fired without cause, you most likely have nothing to worry about. Courts in New York generally will not enforce a non-compete against you in this situation because it’s so unfair. If your employer is not willing to employ you, then it cannot prevent you from working within your field. It’s just that simple. Also, most firings are without cause. Cause only exists if you do something seriously wrong like commit a major crime, steal from your employer or do something intentionally harmful to the company. If you were not fired, then go to steps 2 & 3 below. 2. Company Trade Secrets New York courts will not enforce a non-compete agreement against an employee unless the company has a legitimate interest to protect. In almost every case, the only possible legitimate interests are trade secrets. Therefore, your non-compete agreement is probably unenforceable unless you have access to your employer’s trade secrets. Most people do not have access to trade secrets. For example, at the Coca Cola company, their trade secrets are the formulas for coke and other drinks, and they are closely guarded secrets. If you do have access to trade secrets or confidential information, then go to step 4 below. 3. Unique Skillset Do you have unique or extraordinary skills? This step only covers doctors, famous singers, actors & athletes and nationally renowned experts. Very few people have to worry about this. Unless you are one of them, your non-compete will not be enforced. 4. Reasonable Geographic Scope Is the non-compete agreement reasonable in time and geographic scope? This step only applies if you answered yes to step 2 or 3 above. Generally, a non-compete will be deemed reasonable if the restriction is limited to a year or less but that can vary. An agreement is reasonable in geographic scope if it covers the company’s service area or market. For example, if you are a doctor who works for a medical practice that serves Brooklyn, then the non-compete should only cover Brooklyn. Or if you work for Google, most of their products have global reach so a non-compete with Google could cover the globe. Summing it Up Those are the four steps. If you answered yes to the first step or no to steps two and three, then your non-compete is unenforceable. These rules only apply to New York cases because other states have different rules. If you need help with a non-compete agreement or want to learn more about New York Non- Compete Core Concepts, please contact us.
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