# Non-Compete Agreement Review Checklist — New York[^about] A clause-by-clause reviewer checklist for New York employee restrictive covenant agreements — confidentiality, non-solicits, non-competes, and non-disparagement under the common-law BDO Seidman reasonableness test and New York case law. ## Parties and cover-term identification {#parties-and-cover-term-identification} Work through every item the way a New York court would: there is no general non-compete statute here, so a covenant stands or falls on the *BDO Seidman* reasonableness test, the short list of interests New York treats as protectable, and the employer's own drafting restraint — because a court that finds overreach has no obligation to trim the clause down. For the question-by-question legal analysis behind these items, see the [New York non-compete practice note](/legal/non-compete/new-york). - [ ] **Parties identified by name** (Recommended) — Confirm the named employer is the entity whose trade secrets, customer relationships, and goodwill the covenant claims to protect. New York ties enforceability to a legitimate interest of the employer, so a covenant signed with a parent or affiliate that holds none of the relationships at stake starts the reasonableness analysis with a gap it may never close. [#identify-parties] - [ ] **Effective date** (Recommended) — Every covenant clock needs a defined start, and in New York the date does a second job: it marks whether the covenant came at hire or mid-employment, which determines whether the consideration question even arises. Reasonableness in time is part of the enforceability test, and a duration nobody can compute is a duration nobody can defend. [^otg-time-area-cover] [#identify-effective-date] - [ ] **Employee title** (Recommended) — Record the role with more care than usual. One of New York's few protectable interests is competition by an employee whose services are unique or extraordinary, and courts decide that question case by case from the employee's actual relationship to the business — the stated title and duties are the first evidence on the point. [^ticor-role-inquiry] [#identify-employee-title] - [ ] **Governing law state named** (Recommended) — Check that a governing state is stated, and read any non-New York selection for a New York-based worker skeptically. The Court of Appeals has refused to apply a chosen foreign law to a restrictive covenant where doing so would violate New York public policy, so the clause names a starting point — not an escape hatch. [^brown-brown-policy-cover] [#identify-governing-law] ## Definitions {#definitions} - [ ] **Confidential information** (Recommended) — Test the definition against New York's oldest limit: an employee's knowledge of the employer's ordinary, internal operations is not protectable absent a trade secret or a breach of trust. A definition that quietly absorbs general know-how and routine business information claims an interest the courts have refused to recognize for half a century. [^reed-roberts-general-knowledge] [#define-confidential-information] - [ ] **Trade secrets** (Recommended) — A separate, concrete trade-secret definition matters here because trade secrets and confidential customer information head the short list of interests that can justify a New York restraint. The sharper the definition, the easier it is to show the covenant guards something the law actually protects rather than competition in general. [^gallagher-protectable-categories] [#define-trade-secrets] - [ ] **Restricted period** (Recommended) — One umbrella defined term keeps every duration auditable, and in New York duration is not housekeeping: reasonableness in time period is part of the enforceability framework itself, so a court asked to enforce the covenant will be measuring exactly the number this definition controls. [^ag-faq-time-geography] [#define-restricted-period] - [ ] **Restricted territory** (Recommended) — Tie the geography to where the protected interest actually lives — the clients served, the secrets exploitable — not to the employer's footprint. Geographic scope is one of the express reasonableness factors, and an everywhere-we-operate territory invites a finding of overbreadth that a New York court has discretion to leave unrepaired. [^ag-faq-time-geography] [#define-restricted-territory] - [ ] **Covered customers** (Recommended) — Bound the class to customers the employee actually developed or serviced during a stated look-back window. The Court of Appeals has held a customer restraint overbroad precisely because it reached clients the employee had never met, did not know about, and had done no work for — an entire-book-of-business definition recreates that losing posture on day one. [^brown-brown-never-served-defs] [#define-covered-customers] - [ ] **Covered employees** (Recommended) — Keep the no-poach class to colleagues the departing worker actually worked with during the look-back window. New York treats employee non-recruitment clauses as lighter restraints than non-competes, and the narrower the class, the easier it is to keep that favorable framing instead of drifting toward a workforce-wide mobility ban. [#define-covered-employees] - [ ] **Protected business interests** (Recommended) — Name the interests — and make them New York's interests. The recognized categories are misappropriation of trade secrets or confidential customer information, competition by an employee whose services are unique or extraordinary, and client goodwill created and maintained at the employer's expense. A recital built on anything else decorates the agreement without supporting it. [^gallagher-protectable-categories][^bdo-goodwill-defs] [#define-protected-interests] - [ ] **Competitive business** (Recommended) — Describe the genuinely competing activity in concrete terms. A definition stretching to anything the employer might someday do reads as a restraint on ordinary competition — the one thing New York will not protect — and an overreaching definition undercuts the good-faith showing the employer needs if it ever asks a court to enforce the covenant in part. [#define-competitive-business] - [ ] **Small public-stock carve-out** (Recommended) — Where ownership or investment in competitors is restricted, look for a passive-holdings carve-out below a stated threshold. A clause that technically bars index funds and ordinary public shares adds hardship on the employee without protecting any recognized interest — needless weight on the very prong New York courts use to strike covenants down. [#permit-de-minimis-passive-public-investment-carveout] - [ ] **Passive public holdings** (Optional) — A drafting convenience rather than a requirement — many agreements inline the carve-out instead of defining a capitalized term. If the term appears, confirm its percentage matches the operative carve-out it supports. [#define-passive-public-holdings] - [ ] **What counts as soliciting** (Recommended) — Pin the term to initiating contact. New York's goodwill cases draw the controlling line between actively soliciting former customers and accepting business that arrives without prompting — a definition that also captures passive acceptance pushes the clause across that line and toward the broader restraint courts scrutinize hardest. [^mohawk-solicitation-line] [#define-solicit] - [ ] **Termination of employment** (Recommended) — Verify the trigger handles resignation, dismissal, and expiration of a fixed term the same way. The restricted period runs from this event, and in New York the manner of separation can color the whole analysis — an undefined trigger invites exactly the fact-by-fact dispute the definition exists to prevent. [#define-termination-of-employment] ## Timing and execution acknowledgements {#timing-and-execution-acknowledgements} - [ ] **When the agreement was signed** (Recommended) — The signing-versus-start-date question carries real consequence in New York. For a covenant signed mid-employment, the consideration can be the employer's forbearance from firing an at-will worker — but that forbearance counts only if employment then continues for a substantial period, and it fails as illusory if the worker is dismissed soon after. The acknowledgement should pin down when the covenant was signed and what consideration moved. [^zellner-forbearance-consideration][^zellner-tenure-validates] [#acknowledge-timing] - [ ] **Chance to consult a lawyer** (Recommended) — No New York rule requires it, but it earns its place anyway: partial enforcement of an overbroad covenant depends on the employer showing it did not use coercive bargaining power, and a documented chance to seek advice before signing is inexpensive evidence on exactly that point. [#acknowledge-opportunity-to-consult-counsel] ## Confidentiality and trade-secret treatment {#confidentiality-and-trade-secret-treatment} - [ ] **Trade-secret protection without an end date** (Required) — Trade-secret obligations should run as long as secrecy does — that is how federal law defines the right. The New York angle: trade secrets sit at the top of the short list of interests that can support a restrictive covenant at all, so an agreement that lets its own trade-secret protection lapse on a calendar date saws at the branch the covenants are sitting on. [^dtsa-trade-secret-definition] [#treat-trade-secret-protection-as-perpetual] - [ ] **Confidentiality end date** (Recommended) — Give ordinary confidential information its own finite term. New York already declines to protect general knowledge and routine operational information, and a perpetual lid on non-secret material reads as the kind of overreach that costs an employer the benefit of the doubt when reasonableness is measured. [#state-confidentiality-duration] ## Permitted disclosures and protected conduct {#permitted-disclosures-and-protected-conduct} - [ ] **DTSA whistleblower notice** (Required) — Federal law, fully applicable in New York: omit the immunity notice and the employer forfeits exemplary damages and attorney fees in a later trade-secret action against the worker. In a state where trade secrets are often the only interest holding the covenant up, giving away those remedies is self-sabotage. [^dtsa-immunity-notice] [#disclose-dtsa-notice] - [ ] **Wage-discussion carve-out** (Required) — Confidentiality and non-disparagement language has to leave wages, hours, and working conditions discussable. Federal labor law protects that speech in every state, and the Board has been striking overbroad clauses in employee agreements regardless of what state law would tolerate. [^nlra-section-7-rights][^mclaren-macomb-protected-activity] [#carve-out-nlra-protected-discussion] - [ ] **Court-ordered disclosure allowed** (Recommended) — Confirm the carve-out for disclosure required by law, court order, or a government investigation, with notice to the employer where lawful. A confidentiality clause cannot stop legally compelled disclosure anywhere, and a clause that pretends otherwise hands opposing counsel an easy overbreadth exhibit. [#permit-compelled-disclosure] ## Property return and certification {#property-return-and-certification} - [ ] **Property return and sign-off** (Recommended) — Return-or-delete at separation, certified in writing. Because New York enforcement so often turns on whether real trade secrets or confidential customer information were at risk, the certification is the cleanest contemporaneous record if protected material later surfaces at a competitor — and its absence weakens the very interest the covenants depend on. [#require-property-return-and-certification] ## Restrictive covenants (each independently includable) {#restrictive-covenants-each-independently-includable} - [ ] **Employee non-solicit** (Optional) — Optional, and the best-positioned covenant in the New York family: courts treat non-recruitment clauses as inherently more reasonable and less restrictive than non-competes, and have enforced a reasonable one even while refusing the non-compete beside it. Keep it inside the Covered Employees class and the Restricted Period to preserve that favorable framing. [^otg-norecruit-lesser][^otg-norecruit-enforced] [#permit-employee-nonsolicit] - [ ] **Customer non-solicit** (Optional) — Enforceable in New York when tied to relationships the employee actually serviced — and overbroad when it is not. The Court of Appeals struck a clause reaching clients the employee never met or worked for, so if this covenant appears, run it through the customers-actually-served gate at the end of this checklist before weighing anything else. [^brown-brown-never-served-covenants] [#permit-customer-nonsolicit] - [ ] **Non-dealing covenant** (Optional) — Non-dealing bars serving covered customers even when they arrive unprompted — a restraint on accepting business, not just chasing it. New York's own goodwill doctrine stops short of that line even for someone who sold the business, permitting unsolicited patronage while banning solicitation; a clause demanding more from a mere employee should be treated as a deliberate risk decision. [^mohawk-acceptance-covenants] [#permit-non-dealing] - [ ] **Non-compete covenant** (Optional) — If a full non-compete appears, it carries the heaviest burden in the New York suite: reasonableness on every prong — no broader than the legitimate interest requires, no undue hardship, no injury to the public — with any single failure invalidating the covenant. Route the review straight through the doctrine gates at the end of this checklist before evaluating its terms. [^bdo-three-prong-covenants][^natural-organics-restraint-test] [#permit-non-compete] - [ ] **Named-competitor narrowing** (Recommended) — When the employer can name its real competitors, bind those instead of leaning on the open-ended Competitive Business definition. New York pays for that restraint twice: a named list is strong evidence the covenant is no greater than required, and it builds the good-faith, no-overreach record an employer must show before a court will even consider enforcing an imperfect covenant in part. [^bdo-good-faith-narrowing] [#narrow-non-compete-by-specified-competitors-when-provided] - [ ] **Non-investment covenant** (Optional) — Rare and deliberate. Confirm the passive-holdings carve-out is intact and the clause shares the defined Restricted Period — and ask which recognized New York interest an investment restriction actually protects, because hardship without a protectable interest behind it is how covenants fail here. [#permit-non-investment] ## Non-disparagement {#non-disparagement} - [ ] **Non-disparagement** (Recommended) — Standard to include with a stated term, but audit the carve-outs: truthful testimony, statements to government agencies, and protected workplace speech must stay outside the clause. Federal labor law polices overbroad versions in every state, and New York adds no special shelter for an aggressive one. [^mclaren-macomb-nondisparagement] [#require-non-disparagement] ## Physician-specific notices and carve-outs {#physician-specific-notices-and-carve-outs} - [ ] **Physician rights and notices** (Recommended) — The dedicated clause should state plainly how the agreement treats physicians. New York's one industry-specific statutory shield covers broadcast employees, not doctors, so a physician covenant is measured under the same reasonableness framework as everyone else's — including the prong asking whether the restraint injures the public, which is where patient access arguments live. Spell out the treatment rather than leaving it to inference. [^natural-organics-public-prong] [#address-physician-specific-rights] ## No conflicting obligations {#no-conflicting-obligations} - [ ] **No conflicting obligations** (Recommended) — The worker's representation that no earlier agreement blocks the new role. It earns extra value on New York intake: an incoming covenant signed under another state's law may not survive New York's public-policy screen, and the representation forces that conversation before the first customer call instead of in a preliminary-injunction brief. [#require-no-conflicting-obligations-representation] ## Notice to future employers and other third parties {#notice-to-future-employers-and-other-third-parties} - [ ] **Notice to future employers** (Optional) — A genuine drafting choice with a New York-shaped cost: warning a new employer off the worker on the strength of an overbroad covenant is the kind of aggressive enforcement conduct that undercuts the good-faith record partial enforcement depends on, and it courts tortious-interference exposure besides. If the clause appears, condition any outreach on a covenant the employer genuinely believes survives the reasonableness test. [#address-notice-to-future-employers] ## Tolling during breach {#tolling-during-breach} - [ ] **Restriction extended during a breach** (Recommended) — The agreement should say whether the clock pauses during a breach — but treat any extension mechanism as an open New York question. No controlling decision blesses automatic tolling, and because duration is itself a reasonableness factor, an open-ended extension can push an otherwise defensible covenant past the line. Draft any extension narrowly and time-limited, and note that pending legislation would cap permissible non-competes at one year if it ever becomes law. [^otg-duration-reasonableness][^s4641a-one-year-cap-tolling] [#address-tolling-during-breach] ## Remedies {#remedies} - [ ] **Injunction availability** (Recommended) — Look for the acknowledgement that breach may cause irreparable harm and that an injunction is appropriate relief — then remember the recital is not the showing. In New York, injunctive enforcement absent trade secrets typically rides on services that are genuinely special, unique, or extraordinary, and no boilerplate paragraph manufactures that fact. [^ticor-injunctive-relief] [#require-injunctive-relief-availability] - [ ] **Attorney fees and costs** (Optional) — A commercial choice; the American Rule applies if the agreement is silent. Check that any fee-shifting is mutual and prevailing-party based — a one-way employer fee clause layered onto an aggressive covenant reads as exactly the coercive posture that costs employers the partial-enforcement safety valve. [#address-attorneys-fees-and-costs] ## Severability and reformation {#severability-and-reformation} - [ ] **Partial enforcement is not a safety net** (Avoid) — Read the severability clause as a risk signal, not insurance. New York rejects automatically voiding every overbroad covenant, but a court will trim one to reasonable scope only when the employer shows it did not overreach, did not lean on dominant bargaining power, and sought in good faith to protect a legitimate interest — meaning the covenant drafted aggressively enough to need rescue is the one least likely to get it. And where no legitimate interest exists at all, there is nothing to sever. Size duration, geography, and activity to the actual interest from the outset. [^bdo-no-per-se-rule][^bdo-conduct-condition][^natural-organics-nothing-to-sever] [#draft-to-reasonable-scope-rather-than-rely-on-partial-enforcement] ## Survival {#survival} - [ ] **Survival after the agreement ends** (Recommended) — Per-covenant survival keeps each clock independently checkable — perpetual for trade secrets, finite for everything else. In New York the discipline matters because each surviving restraint must independently pass the reasonableness test; a bundled survival clause is where an unexamined duration hides until an adversary finds it. [#address-survival-per-covenant] ## Assignment and successors {#assignment-and-successors} - [ ] **Assignment and successors** (Recommended) — Confirm employer-side assignability to successors and that the worker cannot assign. The New York wrinkle: the covenant's force comes from the original employer's protectable interests — its secrets, its customer goodwill — so an assignee inherits the restraint only as far as those interests genuinely travel with the deal. An assignment clause moves the covenant; it cannot mint a new interest to support it. [#address-assignment-and-successors] ## Governing law, venue, dispute process {#governing-law-venue-dispute-process} - [ ] **Choice of law tested against New York policy** (Avoid) — The agreement should not pick another state's law expecting it to displace New York's limits for a New York-based worker. The Court of Appeals has refused to apply a chosen foreign law to a former employee's restrictive covenant where that law was employer-favorable enough to offend New York public policy, and pending legislation would go further by voiding avoidance-purposed choice-of-law and venue clauses outright. The clause should still name governing law, venue, and process — just verify it was chosen for administration, not escape. [^brown-brown-policy-override][^s4641a-antiavoidance-pending] [#avoid-foreign-choice-of-law-against-new-york-public-policy] ## Entire agreement, amendment, waiver, e-signatures {#entire-agreement-amendment-waiver-e-signatures} - [ ] **Entire agreement, amendments, e-signatures** (Recommended) — Boilerplate with a New York consequence tucked inside: any amendment that adds or expands a covenant mid-employment re-opens the consideration question, since continued employment supports the new promise only if the relationship then lasts a substantial period. Review the amendment mechanics so a routine refresh does not quietly create a covenant with no consideration behind it. [#address-entire-agreement-amendment-waiver-and-e-signatures] ## New York doctrine gates {#new-york-doctrine-gates} The six items below exist only on this New York page: they implement the common-law reasonableness gate, the legitimate-interest tether, the customers-actually-served limit, the consideration rule for mid-employment covenants, the broadcast-employee statute, and the goodwill doctrine for sale-of-business covenants — none of which has an analogue in the jurisdiction-neutral checklist. - [ ] **Reasonableness on every prong** (Required) — Run the non-compete through all three prongs of New York's controlling test: no greater than required to protect the employer's legitimate interest, no undue hardship on the employee, and no injury to the public — with the Attorney General's guidance adding reasonableness in time period and geographic scope. One failed prong invalidates the covenant, so the review is conjunctive: the clause must clear every gate, not most of them. [^bdo-three-prong-gate][^natural-organics-three-prong-gate][^ag-faq-framework-gate] [#gate-non-compete-by-bdo-reasonableness] - [ ] **A real protectable interest behind the restraint** (Required) — Identify which recognized interest each covenant actually protects: misappropriation of trade secrets or confidential customer information, competition by an employee whose services were genuinely unique or extraordinary, or client goodwill built at the employer's expense. Knowledge of ordinary internal operations does not qualify, and the unique-services category demands more than that the employee was excellent or valuable. A covenant with no recognized interest behind it is unenforceable outright — there is nothing for a court to trim. [^gallagher-interest-gate][^reed-roberts-gate][^weitz-unique-threshold] [#tie-restraints-to-a-recognized-legitimate-interest] - [ ] **Customer non-solicit limited to customers actually served** (Avoid) — The customer non-solicit should not reach clients the employee never met, did not know about, and did no work for — the precise formulation the Court of Appeals held overbroad. Confine the class to relationships the employee developed or serviced through work for the employer: that is the goodwill interest the law recognizes, and staying inside it preserves the employer's path to partial enforcement if some residual overbreadth surfaces later. [^brown-brown-never-served-gate][^bdo-partial-preserved-gate] [#narrow-customer-nonsolicit-to-customers-actually-served] - [ ] **Real consideration for mid-employment covenants** (Required) — For a covenant signed after employment began, verify what the worker received. Continued at-will employment can carry the promise — forbearance from discharge is a legal detriment — but only if the relationship in fact continues for a substantial period afterward; a worker dismissed soon after signing received illusory forbearance and the consideration fails. Fresh, identifiable consideration such as a raise, promotion, or bonus does not depend on after-the-fact tenure and is the safer record. [^zellner-adequate-consideration-gate][^zellner-substantial-period-gate] [#require-adequate-consideration-for-post-hire-covenants] - [ ] **No post-employment non-compete for broadcast employees** (Prohibited) — If the worker is a broadcast employee, the agreement must not impose a post-employment non-compete at all: the Labor Law bars a broadcasting-industry employer from requiring, as a condition of employment, that the employee refrain from working in a specified area, for a period of time, or for a particular employer or industry after the job ends, and a violating employer is liable for damages, fees, and costs. The statute leaves in-term restraints alone — the ban starts where the employment stops. [^lab-202k-ban-gate][^lab-202k-in-term-gate] [#exclude-post-employment-non-competes-for-broadcast-employees] - [ ] **Sale-of-business covenants and the implied no-solicit duty** (Recommended) — Where the covenant arises from a business sale, review it against the doctrine that already binds the seller: New York implies a covenant barring a seller of goodwill from improperly soliciting former clients — a permanent duty, but a narrower one than an express non-compete, leaving the seller free to accept patronage that arrives unprompted. Keep that solicitation line explicit in the express clause, and note that even the pending statutory ban would preserve this more favored category for qualifying owners. [^bessemer-implied-covenant-gate][^mohawk-narrower-duty-gate][^s4641a-sale-of-business-gate] [#align-sale-of-business-covenants-with-the-implied-goodwill-covenant] [^about]: By Steven Obiajulu, J.D. Published by [openagreements.org](https://openagreements.org) · Maintained by [UseJunior](https://usejunior.com). Last reviewed 2026-06-11. License: CC BY 4.0. Steven Obiajulu, J.D. edits this review checklist for New York (US) coverage. It synthesizes legal sources and is not legal advice. This article is for informational purposes only and does not create an attorney-client relationship. [^otg-time-area-cover]: **OTG Management, LLC v. Konstantinidis** — "In order to be enforceable, an anticompetitive covenant ancillary to an employment agreement must be reasonable in time and area, necessary to protect the employer’s legitimate interests, not harmful to the public, and not unreasonably burdensome to the employee." *OTG Mgt., LLC v. Konstantinidis, 40 Misc. 3d 617 (Sup. Ct. N.Y. County 2013).* [^ticor-role-inquiry]: **Ticor Title Insurance Co. v. Cohen** — "Instead, now the inquiry is more focused on the employee’s relationship to the employer’s business to ascertain whether his or her services and value to that operation may be said to be unique, special or extraordinary; that inquiry, because individual circumstances differ so widely, must of necessity be on a case-by-case basis." *Ticor Title Ins. Co. v. Cohen, 173 F.3d 63 (2d Cir. 1999).* [^brown-brown-policy-cover]: **Brown & Brown, Inc. v. Johnson** — "On this appeal, we hold that applying Florida law on restrictive covenants related to the non-solicitation of customers by a former employee would violate the public policy of this state." *Brown & Brown, Inc. v. Johnson, 25 N.Y.3d 364 (2015).* [^reed-roberts-general-knowledge]: **Reed, Roberts Associates, Inc. v. Strauman** — "Where the knowledge does not qualify for protection as a trade secret and there has been no conspiracy or breach of trust resulting in commercial piracy we see no reason to inhibit the employee’s ability to realize his potential both professionally and financially by availing himself of opportunity." *Reed, Roberts Assocs., Inc. v. Strauman, 40 N.Y.2d 303 (1976).* [^gallagher-protectable-categories]: **Arthur J. Gallagher & Co. v. Marchese** — "An employer’s interests justifying a restrictive covenant are limited ‘to the protection against misappropriation of the employer’s trade secrets or of confidential customer lists, or protection from competition by a former employee whose services are unique or extraordinary’" *Arthur J. Gallagher & Co. v. Marchese, 96 A.D.3d 791 (2d Dep't 2012).* [^ag-faq-time-geography]: **N.Y. Attorney General, Non-Compete Agreements in New York State: FAQ** — "A non-compete is only allowed and enforceable to the extent it (1) is necessary to protect the employer’s legitimate interests, (2) does not impose an undue hardship on the employee, (3) does not harm the public, and (4) is reasonable in time period and geographic scope." *N.Y. Att'y Gen., Non-Compete Agreements in New York State: Frequently Asked Questions (2022).* [^brown-brown-never-served-defs]: **Brown & Brown, Inc. v. Johnson** — "even those Johnson had never met, did not know about and for whom she had done no work" *Brown & Brown, Inc. v. Johnson, 25 N.Y.3d 364 (2015).* [^bdo-goodwill-defs]: **BDO Seidman v. Hirshberg** — "The employer has a legitimate interest in preventing former employees from exploiting or appropriating the goodwill of a client or customer, which had been created and maintained at the employer’s expense, to the employer’s competitive detriment" *BDO Seidman v. Hirshberg, 93 N.Y.2d 382, 392 (1999).* [^mohawk-solicitation-line]: **Mohawk Maintenance Co. v. Kessler** — "Although defendants may accept the patronage of those customers who were actively dealing with Mohawk on the date of the sale if such customers choose to leave Mohawk without prompting from defendants, the defendants remain under a positive and permanent duty to refrain from interfering with the rights acquired by plaintiff as a result of its acquisition of Mohawk’s ‘good will’." *Mohawk Maintenance Co. v. Kessler, 52 N.Y.2d 276 (1981).* [^zellner-forbearance-consideration]: **Zellner v. Stephen D. Conrad, M.D., P.C.** — "Because in at-will employment the employer has the right to discharge the employee (or, as here, an independent contractor providing services under a similar arrangement), without cause, and without being subject to inquiry as to his or her motives (Sabetay v Sterling Drug, supra), forbearance of that right is a legal detriment which can stand as consideration for a restrictive covenant." *Zellner v. Stephen D. Conrad, M.D., P.C., 183 A.D.2d 250 (2d Dep't 1992).* [^zellner-tenure-validates]: **Zellner v. Stephen D. Conrad, M.D., P.C.** — "However, where, as here, a relationship continues for a substantial period after the covenant is given, the forbearance is real, not illusory, and the consideration given for the promise is validated." *Zellner v. Stephen D. Conrad, M.D., P.C., 183 A.D.2d 250 (2d Dep't 1992).* [^dtsa-trade-secret-definition]: **Defend Trade Secrets Act — definition of a trade secret, 18 U.S.C. § 1839** — "the information derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable through proper means by, another person who can obtain economic value from the disclosure or use of the information" *18 U.S.C. § 1839(3)(B) (2018).* [^dtsa-immunity-notice]: **Defend Trade Secrets Act — employer immunity-notice requirement, 18 U.S.C. § 1833(b)** — "An employer shall provide notice of the immunity set forth in this subsection in any contract or agreement with an employee that governs the use of a trade secret or other confidential information." *18 U.S.C. § 1833(b)(3)(A) (2018).* [^nlra-section-7-rights]: **NLRA Section 7 — protected concerted activity, 29 U.S.C. § 157** — "Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection" *29 U.S.C. § 157 (NLRA § 7).* [^mclaren-macomb-protected-activity]: **NLRB news release on McLaren Macomb, 372 NLRB No. 58 (2023)** — "simply offering employees a severance agreement that requires them to broadly give up their rights under Section 7 of the Act violates Section 8(a)(1) of the Act." *McLaren Macomb, 372 NLRB No. 58 (2023); NLRB Office of Public Affairs (Feb. 21, 2023).* [^otg-norecruit-lesser]: **OTG Management, LLC v. Konstantinidis** — "While both Renaissance Nutrition and Lazer recognized that non-recruitment clauses are subject to reasonableness scrutiny because they are anti-competitive in nature, non-recruitment clauses are ‘inherently more reasonable and less restrictive’ than noncompete clauses." *OTG Mgt., LLC v. Konstantinidis, 40 Misc. 3d 617 (Sup. Ct. N.Y. County 2013).* [^otg-norecruit-enforced]: **OTG Management, LLC v. Konstantinidis** — "Here, the court finds that the non-recruitment clause is enforceable because it is reasonable in scope and imposes no meaningful burden on Konstantinidis." *OTG Mgt., LLC v. Konstantinidis, 40 Misc. 3d 617 (Sup. Ct. N.Y. County 2013).* [^brown-brown-never-served-covenants]: **Brown & Brown, Inc. v. Johnson** — "even those Johnson had never met, did not know about and for whom she had done no work" *Brown & Brown, Inc. v. Johnson, 25 N.Y.3d 364 (2015).* [^mohawk-acceptance-covenants]: **Mohawk Maintenance Co. v. Kessler** — "Although defendants may accept the patronage of those customers who were actively dealing with Mohawk on the date of the sale if such customers choose to leave Mohawk without prompting from defendants, the defendants remain under a positive and permanent duty to refrain from interfering with the rights acquired by plaintiff as a result of its acquisition of Mohawk’s ‘good will’." *Mohawk Maintenance Co. v. Kessler, 52 N.Y.2d 276 (1981).* [^bdo-three-prong-covenants]: **BDO Seidman v. Hirshberg** — "The modern, prevailing common-law standard of reasonableness for employee agreements not to compete applies a three-pronged test." *BDO Seidman v. Hirshberg, 93 N.Y.2d 382, 388 (1999).* [^natural-organics-restraint-test]: **Natural Organics, Inc. v. Kirkendall** — "‘A restraint is reasonable only if it: (1) is no greater than is required for the protection of the legitimate interest of the employer, (2) does not impose undue hardship on the employee, and (3) is not injurious to the public’" *Natural Organics, Inc. v. Kirkendall, 52 A.D.3d 488 (2d Dep't 2008).* [^bdo-good-faith-narrowing]: **BDO Seidman v. Hirshberg** — "Under this approach, if the employer demonstrates an absence of overreaching, coercive use of dominant bargaining power, or other anti-competitive misconduct, but has in good faith sought to protect a legitimate business interest, consistent with reasonable standards of fair dealing, partial enforcement may be justified" *BDO Seidman v. Hirshberg, 93 N.Y.2d 382, 394 (1999).* [^mclaren-macomb-nondisparagement]: **NLRB news release on McLaren Macomb, 372 NLRB No. 58 (2023)** — "simply offering employees a severance agreement that requires them to broadly give up their rights under Section 7 of the Act violates Section 8(a)(1) of the Act." *McLaren Macomb, 372 NLRB No. 58 (2023); NLRB Office of Public Affairs (Feb. 21, 2023).* [^natural-organics-public-prong]: **Natural Organics, Inc. v. Kirkendall** — "‘A restraint is reasonable only if it: (1) is no greater than is required for the protection of the legitimate interest of the employer, (2) does not impose undue hardship on the employee, and (3) is not injurious to the public’" *Natural Organics, Inc. v. Kirkendall, 52 A.D.3d 488 (2d Dep't 2008).* [^otg-duration-reasonableness]: **OTG Management, LLC v. Konstantinidis** — "In order to be enforceable, an anticompetitive covenant ancillary to an employment agreement must be reasonable in time and area, necessary to protect the employer’s legitimate interests, not harmful to the public, and not unreasonably burdensome to the employee." *OTG Mgt., LLC v. Konstantinidis, 40 Misc. 3d 617 (Sup. Ct. N.Y. County 2013).* [^s4641a-one-year-cap-tolling]: **N.Y. Senate Bill 2025-S4641A (pending)** — "A NON-COMPETE AGREEMENT THAT IS REASONABLE IN TIME PURSUANT TO SUBPARAGRAPH (I) OF THIS PARAGRAPH SHALL NOT CONTAIN A TERM OF RESTRICTION GREATER THAN ONE YEAR" *N.Y. S.B. S4641A, § 191-d(7)(a) (2025-2026 Reg. Sess.) (pending).* [^ticor-injunctive-relief]: **Ticor Title Insurance Co. v. Cohen** — "Services that are not simply of value to the employer, but that may also truly be said to be special, unique or extraordinary may entitle an employer to injunctive relief." *Ticor Title Ins. Co. v. Cohen, 173 F.3d 63 (2d Cir. 1999).* [^bdo-no-per-se-rule]: **BDO Seidman v. Hirshberg** — "The prevailing, modern view rejects a per se rule that invalidates entirely any overbroad employee agreement not to compete." *BDO Seidman v. Hirshberg, 93 N.Y.2d 382, 394 (1999).* [^bdo-conduct-condition]: **BDO Seidman v. Hirshberg** — "Under this approach, if the employer demonstrates an absence of overreaching, coercive use of dominant bargaining power, or other anti-competitive misconduct, but has in good faith sought to protect a legitimate business interest, consistent with reasonable standards of fair dealing, partial enforcement may be justified" *BDO Seidman v. Hirshberg, 93 N.Y.2d 382, 394 (1999).* [^natural-organics-nothing-to-sever]: **Natural Organics, Inc. v. Kirkendall** — "Since there is no legitimate employer interest to protect, the noncompete agreement is unenforceable and the issue of partial enforcement does not arise" *Natural Organics, Inc. v. Kirkendall, 52 A.D.3d 488 (2d Dep't 2008).* [^brown-brown-policy-override]: **Brown & Brown, Inc. v. Johnson** — "On this appeal, we hold that applying Florida law on restrictive covenants related to the non-solicitation of customers by a former employee would violate the public policy of this state." *Brown & Brown, Inc. v. Johnson, 25 N.Y.3d 364 (2015).* [^s4641a-antiavoidance-pending]: **N.Y. Senate Bill 2025-S4641A (pending)** — "NO CHOICE OF LAW PROVISION OR CHOICE OF VENUE PROVISION THAT WOULD HAVE THE EFFECT OF AVOIDING OR LIMITING THE REQUIREMENTS OF THIS SECTION SHALL BE ENFORCEABLE IF THE COVERED INDIVIDUAL IS AND HAS BEEN, FOR AT LEAST THIRTY DAYS IMMEDIATELY PRECEDING THE COVERED INDIVIDUAL'S CESSATION OF EMPLOYMENT, A RESIDENT OF NEW YORK OR EMPLOYED IN NEW YORK" *N.Y. S.B. S4641A, § 191-d(8) (2025-2026 Reg. Sess.) (pending).* [^bdo-three-prong-gate]: **BDO Seidman v. Hirshberg** — "The modern, prevailing common-law standard of reasonableness for employee agreements not to compete applies a three-pronged test." *BDO Seidman v. Hirshberg, 93 N.Y.2d 382, 388 (1999).* [^natural-organics-three-prong-gate]: **Natural Organics, Inc. v. Kirkendall** — "‘A restraint is reasonable only if it: (1) is no greater than is required for the protection of the legitimate interest of the employer, (2) does not impose undue hardship on the employee, and (3) is not injurious to the public’" *Natural Organics, Inc. v. Kirkendall, 52 A.D.3d 488 (2d Dep't 2008).* [^ag-faq-framework-gate]: **N.Y. Attorney General, Non-Compete Agreements in New York State: FAQ** — "A non-compete is only allowed and enforceable to the extent it (1) is necessary to protect the employer’s legitimate interests, (2) does not impose an undue hardship on the employee, (3) does not harm the public, and (4) is reasonable in time period and geographic scope." *N.Y. Att'y Gen., Non-Compete Agreements in New York State: Frequently Asked Questions (2022).* [^gallagher-interest-gate]: **Arthur J. Gallagher & Co. v. Marchese** — "An employer’s interests justifying a restrictive covenant are limited ‘to the protection against misappropriation of the employer’s trade secrets or of confidential customer lists, or protection from competition by a former employee whose services are unique or extraordinary’" *Arthur J. Gallagher & Co. v. Marchese, 96 A.D.3d 791 (2d Dep't 2012).* [^reed-roberts-gate]: **Reed, Roberts Associates, Inc. v. Strauman** — "Where the knowledge does not qualify for protection as a trade secret and there has been no conspiracy or breach of trust resulting in commercial piracy we see no reason to inhibit the employee’s ability to realize his potential both professionally and financially by availing himself of opportunity." *Reed, Roberts Assocs., Inc. v. Strauman, 40 N.Y.2d 303 (1976).* [^weitz-unique-threshold]: **Purchasing Associates, Inc. v. Weitz** — "More must, of course, be shown to establish such a quality than that the employee excels at his work or that his performance is of high value to his employer." *Purchasing Assocs., Inc. v. Weitz, 13 N.Y.2d 267 (1963).* [^brown-brown-never-served-gate]: **Brown & Brown, Inc. v. Johnson** — "even those Johnson had never met, did not know about and for whom she had done no work" *Brown & Brown, Inc. v. Johnson, 25 N.Y.3d 364 (2015).* [^bdo-partial-preserved-gate]: **BDO Seidman v. Hirshberg** — "Under this approach, if the employer demonstrates an absence of overreaching, coercive use of dominant bargaining power, or other anti-competitive misconduct, but has in good faith sought to protect a legitimate business interest, consistent with reasonable standards of fair dealing, partial enforcement may be justified" *BDO Seidman v. Hirshberg, 93 N.Y.2d 382, 394 (1999).* [^zellner-adequate-consideration-gate]: **Zellner v. Stephen D. Conrad, M.D., P.C.** — "As with any contract, the promise not to compete must be supported by adequate consideration on the part of the promisee." *Zellner v. Stephen D. Conrad, M.D., P.C., 183 A.D.2d 250 (2d Dep't 1992).* [^zellner-substantial-period-gate]: **Zellner v. Stephen D. Conrad, M.D., P.C.** — "However, where, as here, a relationship continues for a substantial period after the covenant is given, the forbearance is real, not illusory, and the consideration given for the promise is validated." *Zellner v. Stephen D. Conrad, M.D., P.C., 183 A.D.2d 250 (2d Dep't 1992).* [^lab-202k-ban-gate]: **N.Y. Labor Law § 202-k** — "A broadcasting industry employer shall not require as a condition of employment, whether in an employment contract or otherwise, that a broadcast employee or prospective broadcast employee refrain from obtaining employment: (a) in any specified geographic area; (b) for a specific period of time; or (c) with any particular employer or in any particular industry; after the conclusion of employment with such broadcasting industry employer." *N.Y. Lab. Law § 202-k(2).* [^lab-202k-in-term-gate]: **N.Y. Labor Law § 202-k** — "This section shall not apply to preventing the enforcement of such a covenant during the term of an employment contract." *N.Y. Lab. Law § 202-k(2).* [^bessemer-implied-covenant-gate]: **Bessemer Trust Co., N.A. v. Branin** — "In answering the certified question, we continue to apply our precedents in Von Bremen and Mohawk and hold that the ‘implied covenant’ bars a seller of ‘good will’ from improperly soliciting his former clients." *Bessemer Trust Co., N.A. v. Branin, 16 N.Y.3d 549 (2011).* [^mohawk-narrower-duty-gate]: **Mohawk Maintenance Co. v. Kessler** — "As such, the ‘implied covenant’ imposes a much narrower duty than do express covenants purporting to restrict the seller’s right to compete in a particular geographical area or field of endeavor." *Mohawk Maintenance Co. v. Kessler, 52 N.Y.2d 276 (1981).* [^s4641a-sale-of-business-gate]: **N.Y. Senate Bill 2025-S4641A (pending)** — "NOTHING IN THIS SECTION SHALL PROHIBIT THE INCLUSION AND ENFORCEMENT OF NON-COMPETE AGREEMENTS OR OTHER SIMILAR COVENANTS IN THE SALE OF THE GOODWILL OF A BUSINESS OR THE SALE OR DISPOSITION OF A MAJORITY OF AN OWNERSHIP INTEREST IN A BUSINESS BY A PARTNER OF A PARTNERSHIP, A MEMBER OF A LIMITED LIABILITY COMPANY, OR AN ENTITY" *N.Y. S.B. S4641A, § 191-d(6) (2025-2026 Reg. Sess.) (pending).*