Although New York’s courts have stated clearly that they disfavor non-compete agreements - since they threaten to prevent departing employees from earning a living in their chosen field - there are still certain categories of “legitimate interests” of employers, where the courts will often honor the restriction.

The 4 categories are as follows:

1) Trade secrets –

Sometimes an employer will have a bona fide trade secret, such as the secret formula to Coca Cola, which the courts will protect. Naturally, and at the risk of stating the obvious, this requires that the information actually be secret – not just that the employer contends it is;

2) Confidential Customer Information –

Where information the employer gathered regarding its customers is actually confidential – and not the type of thing that is readily found on Google, a court may protect it;

3) Employer’s Client Base –

If a client is developed on employer time, and on the employer’s nickel, a court may protect it in the context of a non-solicitation clause

4) "Unique" Employee -

This is the hardest of the 4 possibilities, as more than one New York court has stated that it is “virtually impossible” to prove that an employee is unique, and therefore, should be barred from working for a competitor.

Naturally, this is a VERY brief overview of this topic; if you have further questions regarding your noncompete or nonsolicit provision, I strongly urge you to pick up the phone and contact a noncompete attorney in your jurisdiction.

Jonathan Cooper
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Non-Compete, Trade Secret and School Negligence Lawyer