Restrictive Covenants

States are acting on the dangers to hourly and lower paid workers of noncompete agreements.  Most of the proposed legislation to limit noncompete agreements is aimed at prohibiting their use for these workers.  Noncompete agreements for these employees should be unnecessary--these are employees who have no trade secret information or significant customer relationships, which are the primary reasons for noncompete agreements.  However, cases have arisen where companies seek to obtain some competitive advantage at the expense of lower paid and hourly employees.  In one case, a Seattle, Washington coffee shop sought to enforce a noncompete agreement against its former baristas.
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In New York, it is easy for employers to require restrictive covenants but it can be difficult for them to be enforced after you leave their employment.  However, an employee makes it easier by committing bad acts on the way out the door.  Thus, be very careful about what documents or information you bring with you to your next employer.  To be safe, upon leaving do not take any non-public information that belongs to your former employer and do not take any of the employer’s property.  Finally, speak to an attorney prior to contacting any clients that you service on behalf of the former employer.
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An overly broad restrictive covenant will not protect an employer’s interests.  In order to effectively prevent a former employee from stealing customers or utilizing confidential information, it is important that an employer can quickly run to Court and file an application for injunctive relief.  A restrictive covenant that is overly broad or unreasonable will delay any attempts to obtain injunctive relief.  If a restrictive covenant is overly broad, a Court will issue injunctive relief only after arguments about where the new line should be set.  Often this requires disclosure of confidential customer information, along with the negotiation of a confidentiality agreement.  As a result, not only will any Court assistance be delayed, but the former employer will have to disclose even more customer information.  Accordingly, if you are truly interested in protecting your Company’s proprietary information and customer contacts, it is worth the extra time and money to have appropriate and enforceable restrictive covenants drawn up for each employee that could damage the Company if they suddenly left for a competitor.