NON-COMPETE AGREEMENTS BY DOUGLAS R. HIRSCH AND JENNIFER ROSSAN Employers should give careful consideration to In both of these cases, the AG focused on the departure would create an unfair advantage for the inclusion of non-competition provisions in effect of a non-compete provision on a low-level a competitor—its scope and duration must be employment agreements for low-level employees. employee. Companies should consider avoiding narrowly tailored to protect a legitimate busi- The New York Attorney General (the “AG”) recently the use of non-compete provisions for admin- ness interest. To be enforceable in New York, announced that it settled investigations with two istrative personnel and other non-managerial a non-compete must be reasonable in time companies over their use of non-compete provi- staff. Such provisions are appropriate and are and scope, necessary to protect the employer's sions in employment agreements for low-level more likely to withstand scrutiny when included legitimate interests, not harmful to the public employees. Policing non-compete provisions is a in the employment agreements of senior per- and not unreasonably burdensome to the new regulatory frontier for the AG and it is flex- sonnel and individuals with unique skills—as employee. ing its regulatory muscle pursuant to § 63 (12) of long as the provisions are drafted to protect a New York's Executive Law, which provides the AG legitimate business interest. Non-competes are In addition to confidentiality provisions, employers with authority to enjoin businesses from utilizing should strongly consider the use of a non-solici- “unconscionable contractual provisions.”! tation provision in their employment agreements. Non-competes are more Non-solicitation provisions are generally enforce- The AG investigated and recently settled Eee likely to be upheld if they able if they are reasonably related to the employ- with two companies—Law 360 and Jimmy John’s er’s interest in protecting relationship