Flat-fee non-compete and restrictive covenant review and negotiation. Understand what's actually enforceable under New York law, what's worth negotiating, and what your options are if you're asked to sign or already signed a problematic agreement.
Average quote turnaround: under 1 hour · Free consultation, no obligation
Non-compete agreements restrict an employee's ability to work in competing roles for a defined period after leaving employment. They're part of a broader category of "restrictive covenants" that also includes non-solicit agreements (restricting solicitation of customers or employees), non-disclosure agreements (restricting use of confidential information), and various hybrid restrictions. The substantive law on enforceability varies substantially by state — and New York has its own framework that affects what restrictive covenants are likely to be enforced and what aren't.
The New York rule on non-competes: courts will enforce a non-compete only to the extent it's "reasonable" — and reasonableness depends on (1) the duration of the restriction, (2) the geographic scope, (3) the scope of restricted activities, (4) whether the restriction is necessary to protect a legitimate business interest of the employer (typically defined narrowly as protecting trade secrets, protecting customer relationships the employer paid to develop, or services that are truly unique), (5) whether the employee received adequate consideration, and (6) whether the restriction imposes undue hardship on the employee or the public. Overbroad non-competes are typically not enforced in NY, or are partially enforced (judicially modified to a narrower scope). The trend in NY law has been toward less enforcement of non-competes against lower-level employees and more careful scrutiny across all categories.
Non-solicit provisions (restricting solicitation of customers or employees of the former employer) are generally more enforceable than non-compete provisions because they protect more concrete employer interests. Non-disclosure provisions (covering trade secrets and confidential information) are typically straightforwardly enforceable as long as they're reasonably scoped.
Most of our non-compete work falls into a few patterns. Pre-signing review: an employee receives an employment offer or severance agreement with restrictive covenants and wants to understand what they're signing and what's negotiable. Post-departure analysis: an employee with an existing non-compete is considering a new opportunity and wants to understand whether the existing restriction is likely to be enforced. Employer-side drafting: structuring restrictive covenants in employment agreements that match the employer's legitimate interests and are likely to be enforced rather than partially or completely struck down. Scope note: We handle review, negotiation, and pre-litigation analysis. We don't handle contested non-compete litigation (the employer is actively trying to enforce the covenant against the employee in court); those matters require litigation counsel.
When an employee receives an employment offer or severance agreement with restrictive covenants, the review identifies what the covenants would actually mean. Key areas: scope of restricted activity (what specifically the employee can't do), geographic scope (where the restriction applies), duration (for how long after employment ends), the relationship to the employee's actual role (whether the restriction is broader than the employee's actual responsibilities), and the consideration the employee receives in exchange for the restriction. We provide a written analysis covering whether the covenants are likely to be enforceable as drafted, which provisions are worth negotiating, and what alternative language might be acceptable to the employer while being less restrictive for the employee.
Most employers expect some negotiation on restrictive covenants, particularly for senior roles. Common negotiation paths: narrowing the scope of restricted activity (covering specific job functions rather than entire industries), narrowing the geographic scope (specific markets rather than worldwide), shortening the duration (6 months instead of 2 years), adding carve-outs for specific situations (the employee can work for non-competing divisions of competitor companies), and clarifying definitions to prevent overreach (defining "competitor" specifically rather than leaving it vague). We negotiate these terms directly with employer counsel or coach the employee through negotiation.
For employees with existing non-compete provisions who are considering new opportunities, the analysis covers: whether the new opportunity would actually trigger the existing restriction (whether the new role is "competitive" within the meaning of the agreement), whether the existing restriction is likely enforceable as a matter of NY law (considering the specific scope and the time elapsed), and what the employer's likely response would be (some employers actively enforce restrictions, others don't typically pursue enforcement except in egregious cases). The analysis informs the employee's decision-making about whether to accept the new opportunity, negotiate with the new employer about indemnification, or negotiate with the former employer for a waiver or modified release.
For employers structuring restrictive covenants, the drafting focuses on matching the actual business interest with the scope of restriction. Overbroad restrictions are unenforceable or partially enforceable and create uncertainty in enforcement; carefully drafted restrictions that match a real business interest are more likely to be enforced when needed. We draft restrictive covenant provisions for employment agreements and structure restrictive covenant frameworks for companies hiring across multiple roles.
Severance agreements often include restrictive covenants — either new restrictions imposed in exchange for severance pay, or reaffirmations of existing covenants from the employment agreement. Severance-attached restrictions have specific characteristics: they're part of a negotiated transaction (severance pay in exchange for various commitments including the restrictions), which means they're typically more negotiable than the underlying employment agreement was, and the timing is often pressed (the employee has a defined window to decide whether to sign). We address severance-attached restrictions as part of broader severance review and negotiation work. More on severance review →
Some restrictive covenants include "garden leave" provisions — the employee receives compensation during the restriction period in exchange for not competing. Garden leave arrangements are more likely to be enforced because the employee receives consideration for the restriction. The trade-off for employees: they can't work in restricted roles during the period but they're paid (often at full salary) during it. We address garden leave structuring in restrictive covenant work.
Flat fee set in writing before any work begins. Pricing scales with scope: review of restrictive covenants in employment or severance agreements (as part of broader review work) is included in those engagements; standalone restrictive covenant analysis prices as a defined-scope project; restrictive covenant drafting for employer-side clients prices as part of broader employment agreement work or as a standalone project.
For employees with existing non-competes considering new opportunities, the analysis is typically a contained project with predictable pricing. Get a free quote in under an hour by submitting the contact form.
"Tatiana was amazing from the very beginning. Truly one of a kind experience."
Sometimes, depending on whether they're 'reasonable' under NY law. The reasonableness analysis considers duration, geographic scope, scope of restricted activity, whether the restriction protects a legitimate business interest (typically defined narrowly as trade secrets, customer relationships the employer paid to develop, or truly unique services), and whether it imposes undue hardship on the employee. Overbroad non-competes are often not enforced or are partially enforced (judicially modified to narrower scope). NY courts have been increasingly skeptical of non-competes against lower-level employees and more careful in scrutinizing restrictions across all categories. The specific enforceability of any restriction depends on its specific terms and the specific facts of the situation.
Generally more enforceable than non-compete agreements in NY. Non-solicit provisions (restricting solicitation of customers or employees of the former employer) protect more concrete business interests — preventing the former employee from using their position to take customers or staff with them. Customer non-solicits are particularly enforceable when they protect customer relationships the employer paid to develop. Employee non-solicits are typically enforceable as long as the scope is reasonable. Both types still must be reasonable in duration and scope, but the underlying business interest is recognized as legitimate.
Depends on the specific terms and the time elapsed. Non-competes typically have a defined duration after employment ends (1 year, 2 years, etc.); once that duration has elapsed, the non-compete no longer restricts the employee. Some non-competes have provisions that extend the duration in certain circumstances (the employee violated the agreement, the parties agreed to extension, etc.) — these specific terms matter. If you're considering a new opportunity and you have an existing non-compete, an analysis can identify whether the restriction is still in effect, whether it covers the new opportunity, and what the realistic enforcement risk would be.
By mutual agreement, yes — either party can request modifications and the parties can agree to amend the agreement. Without agreement, modifications generally aren't possible. Some employers will agree to release or modify a non-compete in exchange for something (a transitional consulting arrangement, a delay before joining the new employer, an agreement not to solicit specific customers or employees). In some cases, the new employer will negotiate with the former employer for a release or modification on the employee's behalf — this happens occasionally in senior recruitments. We help employees evaluate these paths and structure the requests.
Several options depending on the situation. Negotiate with the employer for a narrower agreement or a release. Take the new opportunity and rely on the likelihood that the overbroad covenant would not be enforced if challenged (a risk-tolerance decision). Seek a judicial declaration of non-enforceability (a litigation path that's rarely necessary). Sometimes the existing employer doesn't actively enforce non-competes even when they could, particularly when the employee is moving to a non-strategic competitor. The right path depends on the specific facts. We provide honest analysis of risk and options.
Flat fee set in writing before any work begins. Standalone non-compete analysis prices modestly. Get a free quote in under an hour by submitting the contact form.
Free 20-minute consultation. Quote in under an hour. No obligation.
Get your free quote →