New York courts generally disfavor restrictive covenants and will only enforce non-competes that are necessary to protect an employer’s legitimate interests, do not impose an undue hardship on the employee, do not harm the public, and are reasonable in duration and geographic scope. Johnson Controls v. A.P.T. Critical Sys., 323 F. Supp. 2d 525, 533 (S.D.N.Y. 2004) (citing Reed, Roberts Associates v. Strauman, 353 N.E.2d 590, 593 (1976)); Barbara D. Underwood, N.Y. State Att’y Gen.’s Office, Non-Compete Agreements in New York State (2018). An employer’s legitimate interests include preventing disclosure of trade secrets, client lists, and confidential information and loss of highly skilled and specialized employees. Johnson Controls, 323 F. Supp. 2d 534-35. And while governmental resistance to non-competes is nothing new, New York is seeing a fresh wave of legislation and efforts to restrict non-compete use. Underwood, supra at 3. So what does this mean for Melissa?

As a low-wage, low-level employee, Melissa’s non-compete is very likely unenforceable in court. Moreover, concern over the negative economic impact of non-compete agreements and their restraint on free trade and freedom of profession has recently prompted the Attorney General of New York (NYAG) to conduct a number of investigations into the “rampant misuse” of non-competes. A.G. Underwood Announces Settlement With WeWork to End Use of Overly Broad Non-Competes That Restricted Workers’ Ability to Take New Jobs, N.Y. St. Off. Att’y Gen. (Sept. 18, 2018) (“WeWork Settlement”). Section 63(12) of New York’s Executive Law gives the NYAG authority to investigate and bring independent causes of action for fraud, which includes “unconscionable contractual provisions.” N.Y. Exec. Law §63(12) (Consol. 2018); In re People by Eric T. Schneiderman v. Trump Entrepreneur Initiative, 26 N.Y.S.3d 66, 73 (N.Y. App. Div. 2016).