Creating and maintaining employment restrictive covenants cannot be a static process. Rather, as with many contracts involving various subject matters, lawyers tasked with drafting and implementing the documents are well-advised to stay abreast of the latest case law developments to enhance the intended meaning and enforceability of those contracts.1
While case law determining whether and to what extent employment restrictive covenants are enforceable is certainly inconsistent and unpredictable, the courts continue to provide instructive pronouncements and observations. Lawyers who ignore such developments do so at their peril. The Fourth Department’s recent decision in Brown & Brown v. Johnson, 980 N.Y.S.2d 631 (4th Dept. 2014) provides a font of information regarding the drafting and implementation of employment restrictive covenants. In fact, the decision stands as a stark warning to employers—rethink and revise your restrictive covenant agreements and procedures or your agreements may not be worth the paper they are written on.
