Non Compete Clause and noncomplaince

I have researched the non-compete clause and I am aware that NYS disfavors it. How can they still be enforced? I was not compensated for this clause in my contract. In my contract, there was no clause regarding opening my own practice while working in the office. Also, restrictions were put on me that were not in the contract signed. In a letter I received from the attorney, it stated that I was to turn over money generated in the other officeprior to my termination. How can they say that? What are my rights?

2 answers  |  asked Dec 9, 2002 10:18 AM [EST]  |  applies to New York

Answers (2)

David M. Lira
Competing with Your Employer

I just wanted to supplement Joseph Heppt's answer, which I agree with.

Although New York courts generally disfavor non-compete clauses in employment agreements, New York courts will also assume that a current employee (someone still working for a particular employer)has a duty of loyalty toward that employer. That duty of loyalty includes not competing with the employer. Courts disfavor non-compete clauses because it impedes an otherwise unemployed person's ability to make a living, but, if a person is making a living from an employer, that is not a concern. The concern that courts have with a current employee in a competing business is that the employee while benefiting from the employer may be at the same time impairing the employer's ability to make a living.

Your situation likely raises many other fairly complicated factual issues including the following: Were you really competing with the employer? How do you measure that competition? Was the employer aware of your second job? Did other employees have second jobs? How did their jobs compare to yours in terms of competition? These issues are probably too complex for a public forum like this, and you should have some concern with confidentiality. I suggest that you arrange for a private consultation with a knowledgeable attorney to more thoroughly review your situation.

posted by David M. Lira  |  Dec 10, 2002 7:12 PM [EST]
Joseph Heppt
Non-Competes in NY

You are correct, NY courts generally disfavor non-compete clauses. This does not mean, however, that they will not be enforced; it simply means that courts will construe them narrowly. There are various criteria that NY courts have identifed such as the duration of the restriction as well as the geographic limitation. The reasonableness of the restrictions in your contract depend upon, among other things, the type of services you were performing and the uniqueness of those services. I would be happy to discuss this with you further and to review your contract with you. Please feel free to contact me directly at to schedule an appointment.

posted by Joseph Heppt  |  Dec 9, 2002 10:26 AM [EST]

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