How to Beat a Non-Compete Agreement in New York

Ottinger Employment Lawyers Can Help with Non-Compete Agreements

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.

Ottinger Employment Lawyers have been assisting executives with non-compete issues since 1999. Submit the short form below to get started with a consultation.

Our attorney, Robert Ottinger is an expert when it comes to non-compete agreements in New York. Watch the short video below to find out if your non-compete is enforceable.

If you would like to get in contact with a New York employment law attorney, contact us today.

Important Information About Non-Compete Agreements in New York

Locked into a Non-Compete in New York?

Here are five ways you 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 in New York

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.

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.  

Should you sign a non-compete agreement?

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.  

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:

  1. Engage in the business of the company or in any business that is in competition with the business of the company,
  2. Be employed by, consult for, or provide any service 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,
  3. Solicit or accept the same or substantially related business of any other 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 interfere with the goodwill and customer relationship of the company.

The Legal Standard Used to Evaluate New York Non-Compete Agreements

In New York, courts disfavor non-compete agreements and enforce them only when necessary.  Here are the main factors courts consider:

  • non competes are enforced only when necessary to protect legitimate business interests such as trade secrets or special skills acquired during employment
  • non compete agreements must be reasonable in time and geographic reach
  • the agreement cannot be harmful to the general public
  • the agreement must not be unreasonably burdensome on the employee.

Courts apply the same standard to non-solicitation agreements.

non compete agreement ny

8 Ways to Defeat a New York Non-Compete Agreement

1. Fired Without Cause

If your employer is not willing to employ you, courts generally will not enforce a non-compete agreement.

This is almost black letter law in New York, so if you were fired without cause, your non-compete agreement is not enforceable.

But there is no reason to feel trapped by that non-compete agreement. It’s not enforceable in this situation.

A Common Scenario: Are Non-Competes Enforceable in New York?

Today, most New York executives are bound by non-compete agreements. And many find themselves fired without cause or laid off at some point.

They feel trapped by their non-compete agreement. They want to stay in their field because that is where they offer the most value.

They have bills to pay and families to support. But, their non-compete agreement forbids working in their field. I

In addition, most of these executives don’t have access to their former employer’s trade secrets.

They usually hold positions in sales, management, operations, or other areas that did not necessitate access to genuine company trade secrets.

If you find yourself in this situation, your New York non-compete agreement is unenforceable.

A court is unlikely to enforce it against you because it does not protect your former employer’s legitimate business interests and because they fired you.

It’s not worth the paper it’s written on. But many companies still try to coerce executives into compliance. How should you handle this situation?

We have helped countless executives through this situation. If this is happening to you, it might make sense to get legal help.

You need to stay in your field, but also have peace of mind knowing that you are not going to wind up in court.

More companies are using non-compete agreements. A study by economists in 2014 found that one in five people nationwide are bound by non-compete agreements.

2. The Legitimate Business Interests Test

An employer cannot enforce a non-compete agreement against an employee unless it can demonstrate a legitimate interest that needs to be protected.

In most cases, the only legitimate interest that justifies the enforcement of a non-compete clause is a trade secret.

This means that your non-compete agreement will not be enforced unless your company has trade secrets, and you know about them.

Very few people have actual knowledge of a company’s trade secrets.

Most companies cannot satisfy the legitimate interests test and this renders the non-compete agreement unenforceable.

Unless you have detailed knowledge of your company’s trade secrets, your non-compete agreement is probably unenforceable.

New York non-compete agreements are disfavored. Courts don’t want to lock talented employees out of their fields unless there is a very good reason to do so.

This is why the legitimate business interests test was created. In Reed, Roberts Associates, Inc. v Strauman (40 NY2d 307 [1976]), the court held that non-compete agreements would be enforced only to the extent necessary to protect a company’s legitimate business interests.

3. Unclean Hands

Your employer cannot enforce an agreement that it breached itself.  Your non-compete is probably part of your employment agreement.  

Has your employer violated any of its promises?  

Have they changed your position?  Have they paid you everything they promised to pay such as bonuses, commissions, incentives, wages, etc.?

Have they provided all benefits promised in the agreement?  

Have they broken any employment laws?  Read your agreement closely and try to find a breach.  

Judges do not like enforcing non-compete agreements and if your employer did anything wrong then they might have no chance of enforcing that agreement against you.

4. The Janitor Rule

The Janitor Rule is a tool used by courts to void non-compete agreements that are too broad.

For example, a non-compete agreement that prevents a CEO from being employed by a competitor as a janitor, cook, pilot, or any other role is invalid.

In Reading & Language Learning Center v. Sturgill (2016), a speech therapist was prohibited from working with “any current client” for two years.

The non-compete agreement did not “limit or define the capacity in which the employee is prohibited from contracting.”

The court found that this agreement was so broad, that the speech therapist was barred from working in any capacity and this was too broad.

Under this non-compete agreement, the speech therapist would not be able to work as a janitor for a competitor and the court refused to enforce it.

A federal judge in Wisconsin described “janitor clauses” as terms which “prohibit employees from taking any position at a competitor, even those unrelated to the current position.”

Courts are now dismissing non-compete suits filed against employees that are based on agreements that are overly broad.

A judge in Illinois recently rejected a non-compete suit filed against a former staffing employee.

The employee signed a non-compete agreement that prevented her from having any involvement with any competitors or being connected “in any manner” with a competitor.

The judge refused to enforce the non-compete agreement because it was too broad. Medix Staffing Solutions, Inc. v. Dumbrauf (2018).

If you are facing a non-compete issue, take a look at your agreement. Is it overly broad? Does it prevent you from working for a competitor in any manner including working as a janitor?

Or does it narrowly tailor the restrictions, so it relates directly to your position with the company? Read our blog post: The Janitor Rule Mops Up Another Non-Compete Agreement.

5. Report Your Employer to the Attorney General for Non-Compete Abuse

The New York Attorney General’s Office has prosecuted employers who abuse non-compete agreements.  See this article in Fortune. 

The only legitimate use of a non-compete agreement in New York is to protect trade secrets or highly unique skills acquired while employed.   

If you don’t fall into that category, then you should not be bound by a non-compete agreement and your employer could be prosecuted for trying to restrict your ability to move to another employer.   

A New York employer today risks prosecution from the Attorney General if it tries to enforce a non-compete agreement unless genuine trade secrets or highly unique skills are at issue. 

New York employees now have more protection from abuse by overreaching employers.

Courts will only enforce New York non-compete agreements in certain specific circumstances upon a showing of genuine harm to their legitimate business interests such as the disclosure of trade secrets.

However, companies routinely try to bully employees into compliance with unenforceable non-compete agreements.

It got so bad that the New York Attorney General came after several companies, such as Law360, for abusing New York non-compete agreements.

6. Journalists Bullied Into Non-Compete Compliance

In 2017, Stefanie Russell-Kraft was working as a legal journalist for Law360. She got a job offer from Reuters, a competitor to Law360.

Russell-Kraft had signed a non-compete agreement and Law360 sent a letter to Reuters. The letter alleged that Russell-Kraft was prohibited from working for Reuters by the terms of her non-compete agreement.

Reuters, as many companies do, choose to fire Russell-Kraft to avoid the potential conflict with Law360.

The New York Attorney General’s Office came after Law360 for abusing their non-compete agreements.

Law360 settled with New York State and agreed to limit their use of non-compete agreements.

In connection with the settlement, the New York Attorney General’s issued the following statement:

“Unless an individual has highly unique skills or access to trade secrets, non-compete clauses have no place in a worker’s employment contract.

Unscrupulous non-compete agreements not only threaten workers seeking to change jobs, but they also serve as a veiled threat …

Workers like the reporters at Law360 should be able to change jobs and advance their careers without fear of being sued by their prior employer.”

Here is the Law360 settlement agreement. Under the terms of the non-compete agreement, all journalists and editorial staff were prohibited from working at any other news agency in the nation for a year.

The practical impact of agreements like these is to trap employees within a company. If they leave, they are barred from their field.

This is bad for the employees bound by these agreements, and the economy because it prevents the free flow of labor within the industry.

The New York Attorney General also sued Jimmy John’s for making food workers sign New York non-compete agreements.

The workers signed agreements that prohibited them from working for rival sandwich makers within two miles of any Jimmy Johns store.

Jimmy John’s settled and agreed to stop tying up food workers with non-compete agreements. Read here for more details on that case.

7. The Proliferation of New York Non-Compete Agreements

New York non-compete agreements were once limited to high-level company executives who had access to vital company information.

Often, these executives had pre-negotiated severance agreements that paid them to sit out during the non-compete period.

These were fair deals. But times have changed.

Now, some companies are forcing low-level workers such as sandwich makers and delivery drivers to sign non-compete agreements.

The New York Times profiled this new practice and explained how it harms people.

Non-compete agreements are controversial. Numerous states and cities are considering legislation that would limit or ban the use of non-compete agreements. New Hampshire and New York City are currently considering limiting legislation. Vermont and Pennsylvania have broader proposals that would prohibit the use of all non-compete agreements.

8. There is No Competition

A non-compete agreement cannot be enforced unless your employer proves that you are competing.  

Compare the product or service of your new employer with your prior employer.  

  1. Do they compete?  
  2. Is your new employer offering the exact same services or products as your prior employer?  
  3. Do they serve the same needs?  
  4. Are they in the same markets?

Be prepared to demonstrate that your new employer provides different products or services or is in a different market than your prior employer.

This Guide was created to help executives navigate the minefield of New York Non-Compete Agreements.

The Ottinger Employment Lawyers has been assisting executives with non-compete agreements since 1999.

To speak with a New York employment attorney, fill out the form below.

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 your consultation started. 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.

Defenses Against the Enforcement of New York Non-Compete Agreements

In the preceding sections of this Guide, we covered several of the best arguments executives can use to prevent the enforcement of a non-compete agreement.

These are:

  1. Lack of legitimate business interests
  2. The company fired the executive, and
  3. The Janitor Rule.

These arguments are often all you need to defend against a non-compete action. But the arguments below can be very effective in certain cases.

  • The Company Breached the Agreement: A company cannot enforce a contract that it has already breached. If your employer has breached any part of its employment agreement, then you can stop them in their tracks if they try to enforce the non-compete clause of the same agreement.
  • The Non-Compete Period is Too Long: How long does a non-compete last? Some non-compete agreements try to restrict executives for two years or more. Most courts will not enforce a non-compete period that is over a year. In some cases, courts will simply modify the agreement by reducing the non-compete period.
  • A Change in Circumstances: If your position has materially changed since you signed your non-compete agreement, then it might not be enforceable. For example, if you were promoted to a higher level and have increased responsibilities and duties, then the prior agreement is out of date and unenforceable.
  • The Geographic Area of Restriction is too Broad: This argument applies if the non-compete covers a geographic area that exceeds the reach of the business. If a company only operates in Queens, it cannot prevent its employees from working in Manhattan.

New York Non-Compete Agreements Review & Consultation

Our firm will review your non-compete and meet with you via phone or video chat, answer your questions, review your non-compete agreement, and draft a written analysis to assist you in understanding your situation.

For this review and consultation, there will be a legal fee of $750.

A review & consultation is often the first step. In many cases, our New York employment lawyers continue representing executives in negotiations or litigation.

Contact us online today or call 347-492-1904 to speak with a member of our team.

Author Photo

Robert Ottinger, Esq.

Robert Ottinger is an employment attorney who focuses on representing executives and employees in employment disputes. Before starting his firm, Robert slugged it out in courtrooms trying cases for the government. Robert served as a Deputy Attorney General for the California Department of Justice in Los Angeles and then as Assistant Attorney General for the New York Attorney General’s Office in Manhattan.