Discussions of restrictive covenants ancillary to an employment contract often begin and end with non-competition clauses, which prohibit employees from competing against the employer during and for some time after their employment. There are, however, a variety of other restrictive covenants that offer different and, in some ways, more useful protection for employers.
Most prominent among these is what is commonly termed a “non-solicitation” clause, which prohibits former employees from soliciting and attempting to attract business from their former employer’s customers and prospects. Just this year, the scope and enforceability of non-solicitation clauses was given extended analysis by the New York Court of Appeals, that state’s highest court, in BDO Seidman v. Hirshberg, 93 N.Y.2d 382 (1999). By extending judicial enforceability to such clauses in certain circumstances, the BDO Seidman decision brought New York in line with a growing trend among the states and is a useful gauge of what non-solicitation clauses can achieve — and what they cannot.
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