Legal Question in Employment Law in New York

Re: Non Compete

It does, and I am honestly not just trying to support my profession when I say you really do need to consult an attorney on this before taking action.

Generally speaking, those covenants are enforceable, but only if they are reasonable as to geographic scope and time. You will need to consult an attorney who can give you an opinion, based upon previous cases in your judicial department, as to what is reasonable. Generally, 50 miles and 1 year is reasonable, for example, but it also depends on the nature of the business, and the uniqueness of the employee. Something that prohibits her from working in all of NY State will be unreasonable, as would something that prohibits her from working for a competitor for 10 years. Another factor to consider is her employment agreement, and whether her former company fired her for cause, or without cause. Generally speaking, if the employer fires the employee without cause, it is said that the employer breached the employment agreement and may no longer reap the benefits of a covenant not to compete. But again, there are many nuances you would need to go over with an attorney.

Another area of importance is trade secrets and proprietary information. You have to be careful that the employee did not pilfer any customer lists and confidential information. Proving trade secrets is very difficult to do, but you don't want to take the chance without sound legal advice. Generally, if the information can be obtained from public sources and information, such as the yellow pages, it is not a trade secret - this is true for customer lists in many industries.

However, you need to understand that by having notice of the employee's contract with her old employer, the old company will sue you for tortious interference with contract. It happens routinely - I see it every single day. So you have to be financially and mentally prepared to deal with it, even if the law does not prohibit you from hiring the individual. Do a cost benefit analysis. Consider how much business you stand to gain and although it is impossible to get an estimate from an attorney, decide for yourself whether it will be worth it even if it costs you $5,000, $10,000 or even 15,000 in attorney's fees.

Re: Non Compete

It depends on the content of the non-compete and whether it is reasonable in scope and duration. Because you have knowledge of the agreement, you could become liable for tortious interference with contract if you induce her to breach her agreement. As stated above, you need to consult with an attorney prior to taking further action.

If you need further assistance, you may contact me by email. Best of luck.

Re: Non Compete

it limits her ability to work for you more than your ability to hire her; but the end result is the same.

You really should talk with an attorney who can see the documents. Athough such agreeements are enforceable in NY, there are limitations on what is enforced; for instance, depending on where you are located, where your competitor is, and the terms of the limitation, the size of the area, and the length of time the restriction covers.

Re: Non Compete

It certainly limits the potential employee's options. Whether you can or cannot in fact be sued successfully is not a certainty but the former employer can make life miserable especially for her and possibly for you as well.

Should you like to discuss this or any other legal matter, you can e-mail me for more information about low cost face-to-face, on-line, or a telephone consultation with a lawyer in our office.