While we acknowledge that under some circumstances the enforcement of restrictive covenants, such as against low paid employees or interns, can be onerous, Assembly Bill 3715, recently voted out of the Labor Committee, is, however, needlessly overbroad. New Jersey’s common law respect for upholding restrictive covenants has always served to prevent inequities and overreach by employers while balancing the need to protect an employee’s right to work.

A restrictive covenant is an agreement that prohibits or limits an employee from working under some circumstances. Historically, New Jersey’s Chancery Judges have looked to reasonableness as the sine qua non of enforcement of such covenants not to compete. In Solari Industries Inc. v. Malady, 55 N.J. 571 (1970), the Supreme Court insisted that to be enforceable the provision must protect a legitimate interest of the employer; impose no undue hardship on the employee; and not impair the public interest. In Whitmeyer Bros. Inc. v. Doyle, 58 N.J. 25 (1971), along with Solari, the court adopted a modified version of the blue pencil doctrine, which allows a court to limit the duration, usually to no more than two years, and to limit the geographic area of a restrictive provision, but can nevertheless allow the covenant to be effective after revision. Our courts have also limited their application in the professional context to attorneys, but not other service providers, such as physicians.