I have been asked rather frequently what a typical non-compete clause in a New York employment agreement looks like. Here is some relatively common language that I've adapted from some of the cases that I've recently handled:
In exchange for initial and/or continued employment, at the Termination Date, EMPLOYEE shall not in any way Compete, as defined below, with [Employer] for a period of one year. The term "Compete" includes, but is not limited to:
- Providing services directly, indirectly or on behalf of a third party to any person or entity in the Geographic Area that are within the scope of services provided by EMPLOYER ("competing services");
- Providing services directly, indirectly or on behalf of a third party to [Employer]'s Customers located anywhere including outside of the Geographic Area;
- Soliciting directly, indirectly or on behalf of a third party any customer for [Employer]'s services in the Geographic Area, whether or not [Employer] is under contract with them or has a business relationship with them, for any reason whatsoever including but not limited to soliciting contact information, business or referrals;
- Advertising and promoting competing services or products in any existing or future advertising medium, including, but not limited to, e-mail, social networking media, radio, television, newspaper, periodical, trade magazine, trade show, convention, flyer and direct mail which is aired, received or takes place, as applicable, in the Geographic Area.
Interestingly, the same language can be held enforceable in one context, yet in a different one, might be unenforceable. Unfortunately - at least for the employee looking for other employment options - each case must be evaluated on its own merits (or the lack thereof).
