If you have any questions about restrictive covenant rules, please contact a member of the HSE Litigation Group. New York courts assess the relevance of a no-pocher agreement by analyzing whether or not it serves a legitimate business interest of the employer. For example, New York courts have ruled that a debauchery prohibition agreement cannot prohibit a former employee from being in contact with all of a company`s customers if the employee has not previously served all of its customers or has not had other relationships with all customers. That would be too broad and would not serve a legitimate commercial interest. In employment contracts, restrictive agreements are clauses that limit a worker`s activities when the worker no longer works for the employer. Like all other elements of an employment contract, the language used in a restrictive contract must be clearly written to meet the needs of both parties. The effects of COVID-19 are likely to be far-reaching and long-lasting, as few imagine. As judges continue to focus on the effects of the pandemic, they are likely to weigh differently on the competing interests of employers and workers in the context of restrictive agreements. Knowing that this unprecedented health crisis will bring a new degree of complexity to applicability analyses, experienced employers can use this time to try to protect and strengthen their contractual interests.
Separation agreements are a useful tool for employers who wish to define the conditions for separation from work and obtain a release of rights in exchange for a benefit (e.g. B severance pay). Separation agreements also allow employees to reaffirm their restrictive obligations. Such agreements should be in writing and expressly confirm the persistence of existing restrictive obligations.  Bdo Seidman, 93 N.Y.2d at 394 (recognizing the judiciary to separate and partially enforce an excessively broad restrictive agreement for employees). In the case of an application for a right of convenience remedy (i.e. a publication ban prohibiting certain conduct) is heavily borne by an employer, since an injunction is always considered an exceptional remedy, especially when it comes to restricting a dismissed worker.  For example, even before COVID-19 resulted in the sudden layoff of millions of American workers, it was statistically less likely that the courts would issue a publication ban on an employee who was fired for no reason. See z.B. Buchanan Capital Markets, LLC v. DeLucca, 144 A.D.3d 508, 508 (1st Dep`t 2016) (“[S]uch Covenants are not applicable if the employer.
shows no persistent willingness to use the party that pledges not to compete. »). There are certain circumstances in which a New York court finds that a use of competition provision is more likely to be enforced. For example, where a worker accepts benefits after dismissal by the employer (i.e. severance pay) to comply with the non-competition clause, the court will be more likely to find that the restrictive agreement is applicable. In those circumstances, the Court may even uphold the non-competition clause if it is inappropriate by other means. However, it is important to note that some New York courts have ruled that competition cannot be imposed on a dismissed employee without cause. In such circumstances, the courts have held that if the employer is not willing to employ the person, it cannot prevent the worker from finding employment elsewhere. If the conclusion of separation agreements is not realistic (for example.B. Employers may also consider a flat-rate reduction in remuneration for all or similar workers, because the layoffs are significant or employers cannot afford to offer a separation benefit to employees. . .