Are employee non-compete agreements enforceable in New York?
Yes, sometimes. New York has no general statute governing non-competes, so enforceability is decided under common law: an employee non-compete is enforceable only to the extent it is reasonable.
The controlling standard comes from the Court of Appeals decision in BDO Seidman v. Hirshberg. A restraint is reasonable only if it: (1) is no greater than required to protect the employer's legitimate interest, (2) does not impose undue hardship on the employee, and (3) is not injurious to the public . A violation of any prong invalidates the covenant, so a New York non-compete is enforced only when the employer can satisfy all three .
The New York Attorney General's public guidance describes the same framework, adding that a covenant must also be reasonable in time period and geographic scope . Trial courts apply the test to non-competes and to closely related restraints such as customer and employee non-solicitation clauses .
Do not treat a New York non-compete as presumptively valid. The covenant must satisfy every prong of the reasonableness test, and one that flunks any prong is unenforceable.
New York has no general non-compete statute, so every covenant in the agreement stands or falls on the common-law three-prong reasonableness test, and a failure of any single prong invalidates the whole covenant. A restraint survives only where it is tied to a Protected Interest, reaches no further than that protection needs, works no undue hardship on the employee, and is reasonable in time and geography — the Attorney General reads the same reasonableness requirement into time period and geographic scope, and New York courts apply the identical standard to closely related restraints such as customer and employee non-solicits. Adequate consideration establishes only that a covenant is supported, not that it is reasonable, so each covenant must clear the test on its own. And where survival is set per covenant rather than bundled under one duration, no unexamined term hides inside a single survival clause.
New York gives physicians no industry-specific statutory shield — its only industry-specific statutory non-compete prohibition covers broadcast employees — so a physician covenant is measured under the same reasonableness framework as any other restraint . A narrow radius, a short term, and preserved patient access are what carry a medical covenant, because the injurious-to-the-public prong is where patient-access and continuity-of-care arguments live and can sink an over-broad medical covenant .
Sources for this answer
Primary source · Case law · 1999-05-13
A.1 BDO Seidman v. HirshbergBDO Seidman supports New York's common-law rule that employee non-competes are judged by a three-pronged reasonableness test, and that violating any prong invalidates the covenant.
The modern, prevailing common-law standard of reasonableness for employee agreements not to compete applies a three-pronged test.
See BDO Seidman v. Hirshberg, 93 N.Y.2d 382, 388 (1999).
Primary source · Case law · 2008-06-03
A.2 Natural Organics, Inc. v. KirkendallNatural Organics restates the BDO three-prong reasonableness test as applied by New York's intermediate appellate courts.
"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"
See Natural Organics, Inc. v. Kirkendall, 52 A.D.3d 488 (2d Dep't 2008).
Official source · Agency guidance · 2022-02-01
A.3 N.Y. Attorney General, Non-Compete Agreements in New York State: FAQPDFThe New York Attorney General's guidance summarizes the four-factor enforceability framework for employees.
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.
See N.Y. Att'y Gen., Non-Compete Agreements in New York State: Frequently Asked Questions (2022).
Primary source · Case law · 2013-06-07
A.4 OTG Management, LLC v. KonstantinidisOTG Management states the reasonableness standard New York courts apply to covenants ancillary to employment.
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.
See OTG Mgt., LLC v. Konstantinidis, 40 Misc. 3d 617 (Sup. Ct. N.Y. County 2013).
What legitimate business interests can support a New York non-compete?
The protectable interests are narrow: a New York covenant must guard against misappropriation of trade secrets or confidential customer information, or against competition by a former employee whose services were unique or extraordinary, or protect client goodwill the employer's resources helped the employee build.
These limits trace to Reed, Roberts Associates v. Strauman, which held that an employee's knowledge of an employer's ordinary, internal operations is not protectable absent a trade secret or a breach of trust . A covenant aimed only at ordinary competition fails, because there is no protectable interest behind it .
The unique or extraordinary services category is demanding. It is not enough that the employee excels or is valuable; the services must be special enough that the employee's loss would cause irreparable injury or be effectively irreplaceable. The inquiry turns on the employee's particular relationship to the business and is decided case by case .
A New York non-compete drafted to block ordinary competition fails. A restraint holds only where it is tied to a specific protectable interest — identified trade secrets, confidential customer information, employer-built client goodwill, or genuinely unique services — because a covenant unconnected to one of those interests is unenforceable regardless of how reasonable its time and geography look.
Each covenant in the agreement needs a recognized interest behind it. New York recognizes a short list — trade secrets or confidential customer information, unique or extraordinary services, and client goodwill created and maintained at the employer's expense — and nothing else . General knowledge, skill, and experience and the ordinary, internal operations of the business are not protectable in New York absent a trade secret or breach of trust; a broad confidentiality definition that sweeps them in, without an express exclusion, reaches beyond what the law protects . The non-investment covenant is the exposed one — hardship with no protectable interest behind it is how covenants fail, and a covenant protecting no legitimate interest is unenforceable outright . Two consequences travel with this: a contemporaneous return, deletion, and certification record is the evidence that real trade secrets and confidential customer information were at stake, and an assignee inherits a covenant only as far as the original interest genuinely travels with the deal — an assignment moves the covenant but cannot mint a new interest to support it.
The remedies clause's irreparable-harm recital does not itself secure an injunction. In New York, absent trade secrets, injunctive enforcement of a restraint typically depends on the employee's services being genuinely special, unique, or extraordinary — a demanding, case-by-case standard no boilerplate paragraph can manufacture. The recital does no harm, but it cannot stand in for a covenant actually anchored to a trade secret or to services demonstrably unique.
Sources for this answer
Primary source · Case law · 2012-06-13
B.1 Arthur J. Gallagher & Co. v. MarcheseGallagher restates BDO's limited categories of protectable employer interests: trade secrets, confidential customer lists, and unique or extraordinary services.
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”
See Arthur J. Gallagher & Co. v. Marchese, 96 A.D.3d 791 (2d Dep't 2012).
Primary source · Case law · 1999-05-13
B.2 BDO Seidman v. HirshbergBDO Seidman recognizes an employer's legitimate interest in client goodwill created and maintained at the employer's expense.
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
See BDO Seidman v. Hirshberg, 93 N.Y.2d 382, 392 (1999).
Primary source · Case law · 1976-07-13
B.3 Reed, Roberts Associates, Inc. v. StraumanReed, Roberts holds that an employee's knowledge of routine internal operations is not protectable absent a trade secret or breach of trust.
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.
See Reed, Roberts Assocs., Inc. v. Strauman, 40 N.Y.2d 303 (1976).
Primary source · Case law · 2008-06-03
B.4 Natural Organics, Inc. v. KirkendallNatural Organics holds that without a legitimate employer interest, a non-compete is unenforceable and partial enforcement does not arise.
Since there is no legitimate employer interest to protect, the noncompete agreement is unenforceable and the issue of partial enforcement does not arise
See Natural Organics, Inc. v. Kirkendall, 52 A.D.3d 488 (2d Dep't 2008).
Primary source · Case law · 1963-12-30
B.5 Purchasing Associates, Inc. v. WeitzWeitz defines the demanding 'unique or extraordinary' threshold for enforcing a covenant absent trade secrets.
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.
See Purchasing Assocs., Inc. v. Weitz, 13 N.Y.2d 267 (1963).
Primary source · Case law · 1999-03-31
B.6 Ticor Title Insurance Co. v. CohenTicor (applying New York law) confirms that only special, unique, or extraordinary services support injunctive enforcement of a non-compete.
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.
See Ticor Title Ins. Co. v. Cohen, 173 F.3d 63 (2d Cir. 1999).
Primary source · Case law · 1999-03-31
B.7 Ticor Title Insurance Co. v. CohenTicor explains that whether services are unique is a fact-specific, case-by-case inquiry into the employee's relationship to the business.
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.
See Ticor Title Ins. Co. v. Cohen, 173 F.3d 63 (2d Cir. 1999).
Will a New York court narrow (blue-pencil) an overbroad non-compete?
Sometimes, but partial enforcement is discretionary, not automatic. New York rejects a per se rule voiding every overbroad covenant, yet a court will rewrite one to a reasonable scope only when the employer acted in good faith and did not overreach.
The decisive factor is the employer's conduct. If the employer shows an absence of overreaching, coercive use of bargaining power, or other anti-competitive misconduct, and sought in good faith to protect a legitimate interest, partial enforcement may be justified . The Attorney General's guidance describes the same possibility — a court may enforce some parts of a covenant for a shorter time or smaller area while disregarding unreasonable portions . For a clause-by-clause pass over a specific agreement under these drafting constraints, the New York non-compete reviewer checklist walks the full covenant suite item by item with each requirement's force level.
But there is no severance to perform when the covenant protects no legitimate interest at all; in that case the agreement is simply unenforceable .
A New York court does not reliably save an overbroad covenant. Because partial enforcement is withheld where the employer overreached, a covenant holds best when duration, geography, and activity scope are drawn to the minimum the protectable interest actually requires — an aggressive covenant is more likely to be struck whole than trimmed.
The severability clause is not a strategy for salvaging an over-broad covenant. Partial enforcement in New York is discretionary and conditioned on the employer's own conduct: the state rejects a per se rule invalidating every overbroad covenant , but a court rewrites a covenant to a reasonable scope only where the employer shows an absence of overreaching, coercive use of dominant bargaining power, or other anti-competitive misconduct and sought in good faith to protect a legitimate interest — and where a covenant protects no legitimate interest at all, there is nothing to sever . A covenant drawn to a reasonable scope from the start does not depend on the clause; the severability clause is a backstop, not a license to overreach.
Two enforcement-posture choices can forfeit the good-faith record on which partial enforcement depends . A third-party notice conditioned on a reasonable belief that the employee may actually breach stays within that record; warning a new employer off a worker on the strength of an overbroad covenant is the kind of aggressive enforcement conduct that undercuts it and can invite a tortious-interference claim. Fee-shifting that is mutual and prevailing-party based reads the same way; a one-way employer fee clause layered onto an aggressive covenant reads as the coercive posture that costs an employer the partial-enforcement safety valve .
Sources for this answer
Primary source · Case law · 1999-05-13
C.1 BDO Seidman v. HirshbergBDO Seidman rejects a per se rule that would void any overbroad employee non-compete in its entirety.
The prevailing, modern view rejects a per se rule that invalidates entirely any overbroad employee agreement not to compete.
See BDO Seidman v. Hirshberg, 93 N.Y.2d 382, 394 (1999).
Primary source · Case law · 1999-05-13
C.2 BDO Seidman v. HirshbergBDO Seidman conditions partial enforcement on the employer's good faith and absence of overreaching or coercion.
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
See BDO Seidman v. Hirshberg, 93 N.Y.2d 382, 394 (1999).
Official source · Agency guidance · 2022-02-01
C.3 N.Y. Attorney General, Non-Compete Agreements in New York State: FAQPDFThe Attorney General's guidance explains that courts may enforce only the reasonable portions of a non-compete.
A court may require an employee to comply with some parts of a non-compete agreement, even if other portions of the agreement are unreasonable, such as length of time or geographic scope.
See N.Y. Att'y Gen., Non-Compete Agreements in New York State: Frequently Asked Questions (2022).
Primary source · Case law · 2008-06-03
C.4 Natural Organics, Inc. v. KirkendallNatural Organics holds that when no legitimate interest exists, the covenant is unenforceable and partial enforcement does not arise.
Since there is no legitimate employer interest to protect, the noncompete agreement is unenforceable and the issue of partial enforcement does not arise
See Natural Organics, Inc. v. Kirkendall, 52 A.D.3d 488 (2d Dep't 2008).
Is continued employment enough consideration for a New York non-compete signed after hire?
It can be. New York treats at-will employment as a relationship that will support a restrictive covenant, and an employer's forbearance from discharging an at-will worker can supply consideration — but only if the employment then continues for a substantial period.
Like any contract term, a promise not to compete must be supported by adequate consideration . In the at-will setting, the employer's right to discharge without cause means that forbearing to exercise that right is a legal detriment that can stand as consideration . The catch is duration: if the worker is fired shortly after signing, the forbearance is illusory and the consideration fails, whereas a relationship that continues for a substantial period validates it .
Do not assume a mid-employment non-compete is supported merely because the worker kept their job. If New York at-will employment ends soon after the covenant is signed, a court may find the promised forbearance illusory and the consideration inadequate; fresh consideration (a raise, promotion, or bonus) reduces that risk.
A post-hire covenant holds only on real consideration, recorded in the consideration recital. A promise not to compete must be supported by adequate consideration like any other contract term , and forbearance from discharging an at-will worker is a legal detriment that can supply it — but that forbearance is real rather than illusory only where employment in fact continues for a substantial period after the covenant is given . Continued employment alone is the weaker basis; fresh, identifiable consideration such as a raise, promotion, or bonus is safer because it does not depend on after-the-fact tenure. And an amendment that adds or expands a covenant mid-employment re-opens the same question, so a routine refresh can quietly create a covenant with no consideration behind it.
Sources for this answer
Primary source · Case law · 1992-11-09
D.1 Zellner v. Stephen D. Conrad, M.D., P.C.Zellner holds that at-will employment is a relationship capable of supporting a restrictive covenant.
We believe, however, that at-will employment qualifies as a relationship which will support a restrictive covenant.
See Zellner v. Stephen D. Conrad, M.D., P.C., 183 A.D.2d 250 (2d Dep't 1992).
Primary source · Case law · 1992-11-09
D.2 Zellner v. Stephen D. Conrad, M.D., P.C.Zellner holds that continued employment for a substantial period validates the consideration for an after-hire covenant.
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.
See Zellner v. Stephen D. Conrad, M.D., P.C., 183 A.D.2d 250 (2d Dep't 1992).
Primary source · Case law · 1992-11-09
D.3 Zellner v. Stephen D. Conrad, M.D., P.C.Zellner restates that a non-compete promise must be supported by adequate consideration.
As with any contract, the promise not to compete must be supported by adequate consideration on the part of the promisee.
See Zellner v. Stephen D. Conrad, M.D., P.C., 183 A.D.2d 250 (2d Dep't 1992).
Primary source · Case law · 1992-11-09
D.4 Zellner v. Stephen D. Conrad, M.D., P.C.Zellner holds that an employer's forbearance from discharging an at-will worker is a legal detriment that can serve as consideration.
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.
See Zellner v. Stephen D. Conrad, M.D., P.C., 183 A.D.2d 250 (2d Dep't 1992).
How does New York treat customer and employee non-solicitation covenants?
They are still measured for reasonableness, but employee non-recruitment clauses are treated as less restrictive than a full non-compete and may be enforceable when reasonable; a customer non-solicitation clause must be tied to the clients the employee actually served.
In OTG Management v. Konstantinidis, the court denied a non-compete injunction but enforced a non-recruitment clause, finding it reasonable in scope and not a meaningful burden on the worker . OTG, a New York trial court following lower-court and federal authority, treated no-recruit clauses as inherently more reasonable than non-competes because they restrict less .
Customer non-solicitation fares differently when it sweeps too broadly. In Brown & Brown v. Johnson, applying New York law, the Court of Appeals found the former employee's customer non-solicitation provision overbroad to the extent it reached customers she never serviced — even customers she had never met, did not know about, and did no work for. The Court applied New York reasonableness law and remitted, leaving partial enforcement to be decided below .
A customer non-solicit that reaches customers the employee never met, did not know about, and did no work for is overbroad. A restraint tied to customer relationships the employee actually developed or serviced through work for the employer holds, and a preserved request for partial enforcement under BDO Seidman leaves a fallback if it is trimmed.
An employee non-solicit sized to Covered Employees rather than drawn at large fits the reasonableness test it still must clear. New York treats employee non-recruitment clauses as inherently more reasonable and less restrictive than non-competes, but they are still analyzed under the same reasonableness test, so the covenant survives on a genuine workforce-stability and goodwill interest held to the Restricted Period.
Sources for this answer
Primary source · Case law · 2013-06-07
E.1 OTG Management, LLC v. KonstantinidisOTG Management treats employee non-recruitment clauses as inherently more reasonable and less restrictive than non-competes.
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.
See OTG Mgt., LLC v. Konstantinidis, 40 Misc. 3d 617 (Sup. Ct. N.Y. County 2013).
Primary source · Case law · 2013-06-07
E.3 OTG Management, LLC v. KonstantinidisOTG Management enforced a reasonable non-recruitment clause while declining to enforce the non-compete.
Here, the court finds that the non-recruitment clause is enforceable because it is reasonable in scope and imposes no meaningful burden on Konstantinidis.
See OTG Mgt., LLC v. Konstantinidis, 40 Misc. 3d 617 (Sup. Ct. N.Y. County 2013).
Primary source · Case law · 2015-06-11
E.2 Brown & Brown, Inc. v. JohnsonBrown & Brown holds a customer non-solicitation covenant overbroad under New York law to the extent it reached customers the employee never met, did not know about, and did no work for.
even those Johnson had never met, did not know about and for whom she had done no work
See Brown & Brown, Inc. v. Johnson, 25 N.Y.3d 364 (2015).
Primary source · Case law · 1999-05-13
E.4 BDO Seidman v. HirshbergBDO Seidman supports preserving partial enforcement of an overbroad covenant where the employer has not overreached.
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
See BDO Seidman v. Hirshberg, 93 N.Y.2d 382, 394 (1999).
How are sale-of-business and goodwill non-competes treated in New York?
More favorably than employee covenants. When someone sells a business and its goodwill, New York implies a covenant barring the seller from soliciting the former customers — a duty the Court of Appeals describes as permanent and narrower than an express non-compete.
In Bessemer Trust v. Branin, the Court of Appeals confirmed that the implied covenant bars a seller of goodwill from improperly soliciting former clients . The seller may still accept business that comes without active solicitation, but remains under a permanent duty not to solicit . That implied duty is narrower than an express covenant because it restricts solicitation rather than competition generally .
If S4641A becomes law, it would expressly preserve sale-of-business non-competes for owners holding at least a 15% interest, leaving this category intact even under a statutory ban .
The sale-of-business clause holds on the line New York's implied goodwill covenant draws. A seller of a business and its goodwill is barred from improperly soliciting the former customers , yet remains free to accept the patronage of customers who leave without prompting — and that implied duty, though permanent, is narrower than an express covenant. A clause that bars a seller from accepting unsolicited business under the banner of goodwill protection reaches past that line; the doctrine restricts solicitation, not acceptance. Sale-of-business and goodwill covenants get more favorable treatment than employee covenants, and while the pending S4641A bill would expressly preserve the category for qualifying owners even under a statutory ban, that is pending only, not law .
The optional no-business-with-covered-customers covenant rests on a strong, documented goodwill interest, and stands on weak ground without one. It bars accepting even unprompted patronage — more than New York's goodwill doctrine asks even of a seller of a business, who may accept customers who choose to leave without prompting while remaining barred from active solicitation. Because it demands more from a mere employee than the implied covenant demands of a seller of goodwill, it presses hardest on the undue-hardship prong of the reasonableness test; a version sized to Covered Customers the employee had material contact with is the defensible one, and its inclusion is a deliberate risk decision rather than a default.
Sources for this answer
Primary source · Case law · 2011-04-28
F.1 Bessemer Trust Co., N.A. v. BraninBessemer Trust holds that on a sale of goodwill, the implied covenant bars the seller from improperly soliciting former clients.
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.
See Bessemer Trust Co., N.A. v. Branin, 16 N.Y.3d 549 (2011).
Primary source · Case law · 1981-02-19
F.2 Mohawk Maintenance Co. v. KesslerMohawk Maintenance holds that the seller may accept unsolicited patronage but remains under a permanent duty not to solicit former customers after a sale of goodwill.
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”.
See Mohawk Maintenance Co. v. Kessler, 52 N.Y.2d 276 (1981).
Primary source · Case law · 1981-02-19
F.3 Mohawk Maintenance Co. v. KesslerMohawk Maintenance explains the implied covenant imposes a narrower duty than an express non-compete.
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.
See Mohawk Maintenance Co. v. Kessler, 52 N.Y.2d 276 (1981).
Primary source · Primary law · 2025-06-09
F.4 N.Y. Senate Bill 2025-S4641A (pending)S4641A, if enacted, would preserve sale-of-business and goodwill non-competes for owners holding at least a 15% interest.
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
See N.Y. S.B. S4641A, § 191-d(6) (2025-2026 Reg. Sess.) (pending).
Can an out-of-state choice-of-law clause avoid New York non-compete rules?
Not when the chosen law is truly obnoxious to New York policy. In Brown & Brown v. Johnson, the Court of Appeals refused to apply a Florida choice-of-law clause to a non-solicitation dispute involving a New York employee, holding that doing so would violate New York public policy .
New York generally honors a contractual choice of law, but reserves a public-policy exception for foreign laws that are truly obnoxious to the state's own policy — and it found Florida's employer-favorable restrictive-covenant law to meet that bar . Looking ahead, S4641A would go further by voiding any choice-of-law or venue clause used to avoid the statute for workers who reside or work in New York .
A non-New York choice-of-law clause does not reliably rescue an employer-favorable covenant against a New York-based worker. Under Brown & Brown, a court can disregard the chosen law and apply New York reasonableness limits where the foreign law is truly obnoxious to New York policy .
An out-of-state choice-of-law clause does not escape New York's limits against a New York-based worker. Governing law set to New York, with venue pointed at the Governing Law state, matches the choices to where the employee actually lives and works — a chosen law that is truly obnoxious to New York policy is disregarded, so a foreign clause cannot be counted on to displace New York's restrictive-covenant rules . The same public-policy screen cuts the other way: a covenant the employee entered under another state's law may not survive New York's, and a no-conflicting-obligations representation surfaces it before it becomes a dispute. And the pending S4641A bill would go further and void choice-of-law and venue clauses used to avoid the statute for workers who reside or work in New York — pending only, not law .
Sources for this answer
Primary source · Case law · 2015-06-11
G.1 Brown & Brown, Inc. v. JohnsonBrown & Brown holds that applying Florida law to a former employee's non-solicitation covenant would violate New York public policy, so New York law governs.
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.
See Brown & Brown, Inc. v. Johnson, 25 N.Y.3d 364 (2015).
Primary source · Primary law · 2025-06-09
G.2 N.Y. Senate Bill 2025-S4641A (pending)S4641A, if enacted, would void choice-of-law and venue clauses used to avoid the statute for workers who reside or work in New York.
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
See N.Y. S.B. S4641A, § 191-d(8) (2025-2026 Reg. Sess.) (pending).
Does a New York non-compete's restricted period pause (toll) during a breach or litigation?
Treat it as an open question. New York measures a covenant's duration as part of the reasonableness test, and no controlling New York decision establishes that the restricted period automatically tolls — pauses and extends — while a former employee is violating the covenant or while litigation is pending .
The uncertainty matters because duration is itself part of what a court must find reasonable. A contractual clause that extends the restricted period during a breach lengthens that very term, so an open-ended or automatic extension can push an otherwise reasonable covenant into unreasonable territory . An employer that wants the clock to pause during a breach should therefore say so expressly rather than assume a court will extend the period. Pending legislation points the same direction: S4641A would cap any permissible non-compete at a one-year term, which an extension-on-breach clause could exceed .
An automatic tolling or extension-on-breach clause does not reliably lengthen a New York non-compete. Because no controlling New York rule blesses judicial tolling and duration drives reasonableness, a narrow, time-limited extension is the one that survives; if S4641A becomes law, an extension that pushes the restriction past one year would conflict with the statutory cap.
Sources for this answer
Primary source · Case law · 2013-06-07
H.1 OTG Management, LLC v. KonstantinidisOTG Management confirms that a covenant ancillary to employment must be reasonable in time, so a clause extending the restricted period is itself subject to reasonableness review.
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.
See OTG Mgt., LLC v. Konstantinidis, 40 Misc. 3d 617 (Sup. Ct. N.Y. County 2013).
Primary source · Primary law · 2025-06-09
H.2 N.Y. Senate Bill 2025-S4641A (pending)S4641A, if enacted, would cap any permissible non-compete at a one-year term, limiting how far an extension-on-breach clause could reach.
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
See N.Y. S.B. S4641A, § 191-d(7)(a) (2025-2026 Reg. Sess.) (pending).
What special non-compete rule applies to broadcast-industry employees in New York?
Broadcast employees have a statutory shield. New York Labor Law § 202-k bars a broadcasting-industry employer from requiring, as a condition of employment, that a broadcast employee refrain from working in a geographic area, for a period of time, or for a competitor after employment ends .
This is the one place New York has a statutory non-compete prohibition rather than a common-law standard. The ban applies to post-employment restraints; it does not reach a covenant operating during the term of an employment contract . An employer who violates the section is civilly liable to the broadcast employee for damages, attorneys' fees, and costs .
For a broadcast employee, a post-employment non-compete is barred outright. A broadcasting-industry employer that requires a post-employment non-compete from a broadcast employee — as to geographic area, time period, or particular employers or industries — is civilly liable for damages, attorneys' fees, and costs . The bar reaches only post-employment restraints; covenants operating during the term of an employment contract are untouched, so it is the restraint aimed at conduct after the job ends that falls outside the statute .
Sources for this answer
Primary source · Primary law · 2014-12-26
I.1 N.Y. Labor Law § 202-kLabor Law § 202-k prohibits broadcasting-industry employers from imposing post-employment non-competes on broadcast employees.
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.
See N.Y. Lab. Law § 202-k(2).
Primary source · Primary law · 2014-12-26
I.2 N.Y. Labor Law § 202-kLabor Law § 202-k applies only to post-employment restraints, not to covenants operating during the contract term.
This section shall not apply to preventing the enforcement of such a covenant during the term of an employment contract.
See N.Y. Lab. Law § 202-k(2).
What are the key recent developments in New York non-compete law?
New York has not banned non-competes, despite repeated attempts. A near-total statutory ban was vetoed at the end of 2023, a narrower successor bill is pending in 2026, and the federal FTC non-compete rule has been vacated — so common law still controls.
- February 21, 2023: The National Labor Relations Board held in McLaren Macomb that simply offering employees severance terms that broadly waive rights under Section 7 of the National Labor Relations Act — including overbroad confidentiality and non-disparagement provisions — violates the Act. The federal overlay applies to covenant packages for non-supervisory employees regardless of how the covenant fares under New York law .
- December 22, 2023: Governor Hochul vetoed S3100A, which would have added Labor Law § 191-d to bar employers from seeking, requiring, demanding, or accepting a non-compete from any covered individual and to declare such restraints void .
- June 9, 2025: The State Senate passed S4641A and sent it to the Assembly, where it remains pending. The bill would void non-competes for covered individuals while carving out workers earning above a $500,000 (CPI-adjusted) threshold, plus separate rules for health-related professionals and a notice requirement.
- September 5, 2025: The FTC moved to dismiss its appeals and accede to vacatur of the 2024 federal Non-Compete Clause Rule, so there is no operative federal ban .
Do not advise clients that New York has banned non-competes. As of this review, no statewide ban is in effect — S3100A was vetoed and S4641A has not passed the Assembly — so the common-law reasonableness test still governs. Re-check the status of S4641A before relying on the current rule.
Confidentiality or non-disparagement language tightened by deleting the protected-activity carve-outs loses its safe footing. Under McLaren Macomb, merely offering an employee terms that broadly waive Section 7 rights — including overbroad confidentiality and non-disparagement provisions — violates the National Labor Relations Act, and the Board's reasoning turns on the breadth of the waiver, not the label of the document. The OpenAgreements New York restrictive covenant form carves Section 7 activity out of both its confidentiality and non-disparagement sections for this reason; a version that swept in wage discussion or other concerted activity would invite an unfair-labor-practice charge no matter how the covenant fares under New York law .
Sources for this answer
Official source · Agency guidance · 2023-02-21
J.4 NLRB news release on McLaren Macomb, 372 NLRB No. 58 (2023)The NLRB held that offering severance terms that broadly waive Section 7 rights — including overbroad confidentiality and non-disparagement terms — violates the NLRA.
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.
See McLaren Macomb, 372 NLRB No. 58 (2023); NLRB Office of Public Affairs (Feb. 21, 2023).
Primary source · Primary law · 2023-12-22
J.1 N.Y. Senate Bill 2023-S3100A (vetoed)S3100A would have banned employers from seeking or accepting non-competes from covered individuals, but was vetoed on December 22, 2023.
NO EMPLOYER OR ITS AGENT, OR THE OFFICER OR AGENT OF ANY CORPORATION, PARTNERSHIP, LIMITED LIABILITY COMPANY, OR OTHER ENTITY, SHALL SEEK, REQUIRE, DEMAND OR ACCEPT A NON-COMPETE AGREEMENT FROM ANY COVERED INDIVIDUAL.
See N.Y. S.B. S3100A, § 191-d(2) (2023-2024 Reg. Sess.) (vetoed Dec. 22, 2023).
Primary source · Primary law · 2025-06-09
J.2 N.Y. Senate Bill 2025-S4641A (pending)S4641A, passed by the Senate and pending in the Assembly, would render non-competes accepted after its effective date null, void, and unenforceable for covered individuals.
ANY NON-COMPETE AGREEMENT SOUGHT, REQUIRED, DEMANDED OR ACCEPTED AFTER THE EFFECTIVE DATE OF THIS SECTION SHALL BE NULL, VOID, AND UNENFORCEABLE.
See N.Y. S.B. S4641A, § 191-d(2) (2025-2026 Reg. Sess.) (pending).
Primary source · Primary law · 2025-06-09
J.5 N.Y. Senate Bill 2025-S4641A (pending)S4641A would exempt highly compensated individuals earning at or above a $500,000 (CPI-adjusted) annual threshold from the non-compete ban.
EQUIVALENT TO OR GREATER THAN FIVE HUNDRED THOUSAND DOLLARS PER YEAR, PROVIDED THAT SUCH COMPENSATION LEVEL SHALL BE ADJUSTED EACH CALENDAR YEAR, BEGINNING IN TWO THOUSAND TWENTY-SEVEN
See N.Y. S.B. S4641A, § 191-d(1)(c) (2025-2026 Reg. Sess.) (pending).
Official source · Agency guidance · 2025-09-05
J.3 FTC, Press Release: FTC Files to Accede to Vacatur of Non-Compete Clause RuleThe FTC moved to dismiss its appeals and accede to vacatur of the 2024 federal Non-Compete Clause Rule, confirming there is no operative federal ban.
Today the Federal Trade Commission took steps to dismiss its appeals in Ryan, LLC v. FTC, No. 24-10951 (5th Cir.), and Properties of the Villages v. FTC, No. 24-13102 (11th Cir.), and to accede to the vacatur of the Non-Compete Clause Rule.
See FTC, Press Release, FTC Files to Accede to Vacatur of Non-Compete Clause Rule (Sept. 5, 2025).