Legal Question in Business Law in New York

Re: Non-Solicitation

Nancy is right. This issue is normally found in an employment contract. If nothing is found in the contract, the employer will have no cause of action against you.

But when is a no competition clause in a contract enforceable in NY.

As set forth in Awwad v. Capital Region Otolaryngology Head & Neck Group, LLP 18 Misc.3d 1111(A) [2008], "It is well established that post-employment covenants against competition �are not favored� under New York law and will only be enforced in limited circumstances ( Morris v. Schroder Capital Mgt. Intl., 7 NY3d 616, 620 [2006] ). �Undoubtedly judicial disfavor of these covenants is provoked by powerful considerations of public policy which militate against sanctioning the loss of a man's livelihood' � ( Reed, Roberts Assoc. v. Strauman, 40 N.Y.2d 303, 307 [1976], quoting Purchasing Assoc. v. Weitz, 13 N.Y.2d 267, 272 [1963] ).

In an effort to strike an appropriate balance, New York has embraced the common-law tripartite test of reasonableness. A post-employment restraint against competition is reasonable if it: (1) is no greater than is required for the protection of the legitimate interests of the employer; (2) does not impose undue hardship on the employee; and (3) is not injurious to the public� ( BDO Seidman v. Hirshberg, 93 N.Y.2d 382, 388-389 [1999] ). Thus, �a restrictive covenant will only be subject to specific enforcement to the extent that it is reasonable in time and area, necessary to protect the employer's legitimate interests, not harmful to the general public and not unreasonably burdensome to the employee' � ( id. at 389, quoting Reed, supra, at 307)."

Mike.

Re: Non-Solicitation

What constitutes solicitation should be defined in your employment contract with Company A. The term is generally defined in the contract; since no one answering this question has the contract, your question is all but impossible to answer since the contract presumably defines the term.

Your best bet is to contact an attorney who practices employment law and have him/her review the contract to determine exactly what constitutes solicitation in your particular case. I'd be happy to do so if you'd like. Feel free to contact my office.

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