The call usually comes in one of two ways.
Either an offer is on the table, and you’re afraid to take it, or the letter has already arrived. Your former employer’s counsel, two pages, citing the agreement you signed, demanding that you decline the position and confirm in writing that you will. There’s a deadline in it. It mentions injunctive relief.
I represent employees, and in my experience most of these letters never become lawsuits. They don’t have to. They work the moment you turn down the job, and the employer never has to prove a thing.
So before you do that, here is what New York actually requires that letter to be able to prove.
Being Good at Your Job Isn’t Something They Can Own
This is where most of these agreements come apart, and it’s the first thing I look at.
New York lets an employer protect three things, and only three. Trade secrets. Genuinely confidential customer information. And competition from an employee whose services are truly unique or extraordinary. The Court of Appeals drew that line in Reed, Roberts Associates v. Strauman back in 1976, and it still holds.
Look at what’s missing. Your experience isn’t on the list. Your competence isn’t. Knowing how the place runs isn’t. The Court said plainly that no restriction should prevent you from using, to your own best advantage, the skills and knowledge you acquired over the course of your employment — including the techniques that amount to variations on general practices your industry already knows.
The facts of that case are worth sitting with. Strauman had been there eleven years. He’d risen to senior vice president in charge of operations. He designed most of the forms the company used and set up its computer system. He left and started a directly competing business in the same town. The Court still refused to stop him, because his services weren’t unique or extraordinary in the legal sense. A ruling the other way, the Court said, would turn operations people and specialists into hostages of their employers.
Customer information gets the same scrutiny. If the customers are findable through public directories and you didn’t take or memorize an actual list, there’s nothing confidential to protect. In that same case, the employer admitted it found its customers through published business directories, and the Court said calling that confidential strains credulity.
The Clients You Brought With You Are Yours
Almost nobody knows this one, and it comes up constantly.
If you brought clients to the firm through your own contacts and your own efforts, and the firm didn’t fund or support that development, the firm has no legitimate interest in keeping you from competing for them. The Court of Appeals said so in BDO Seidman v. Hirshberg in 1999, and the reasoning was blunt: enforcing a covenant against your own clients would let the employer appropriate goodwill that you created and maintained. That turns the entire justification for these agreements upside down.
The same case drew a second line. What an employer may protect is your competitive use of client relationships it enabled you to build by assigning you to do substantive work for those clients. A covenant that sweeps in clients you never worked with reaches past that interest. In Brown & Brown v. Johnson the Court applied the rule to an agreement covering every customer of the employer’s New York offices, including customers the employee had never met, had never heard of, and had done no work for.
So when you sit down with the client list your former employer attached to its letter, sort it into three piles. Clients you were assigned. Clients you brought in yourself. Clients you never touched. Those three piles are treated very differently, and the letter almost certainly doesn’t distinguish among them.
When They Had You Sign It Matters More Than You’d Think
New York courts can narrow an overbroad covenant instead of throwing it out. But whether a court will do that turns on the employer’s conduct in getting your signature, not on how the contract was drafted.
Under BDO Seidman, partial enforcement is available where the employer shows an absence of overreaching, coercive use of dominant bargaining power, or other anticompetitive misconduct, and shows it acted in good faith consistent with reasonable standards of fair dealing. The Court explained why the condition exists: without it, employers would impose unreasonable restrictions freely, with no risk that a court might void the whole thing and leave the employee unrestrained.
Compare how that played out in the two leading cases.
In BDO Seidman, the covenant wasn’t a condition of being hired or of staying employed. It came with a promotion to a position one step below partner. No coercion, no plan to forestall competition, no evidence the firm knew it was overbroad when it imposed it. The covenant was narrowed and enforced.
In Brown & Brown, the employee was recruited away from a job she had held for more than twenty years. Nobody mentioned an agreement during the hiring conversations. She was handed it on her first day, after she had already resigned from her old employer. The Court held that those facts, together with disputes over whether anyone explained it, whether she had to sign that day, and whether she could have consulted a lawyer or negotiated anything, raised genuine questions about overreaching and coercive use of bargaining power. The case went back for discovery instead of being decided on the papers.
Now think about how you got yours. If it appeared in the onboarding stack on day one, after you’d already quit somewhere else, with nobody explaining it and no opportunity to negotiate, that’s the second fact pattern, not the first.
If They Were the Ones Who Ended It
There’s a 1979 case, Post v. Merrill Lynch, that comes up more often than you’d expect.
Two account executives were let go, went to a competitor, and were told their earned pension benefits were forfeited under a clause that cut off benefits for anyone who competed. The Court of Appeals refused to enforce it, holding that forfeiture is unreasonable as a matter of law where the discharge was involuntary and without cause.
The reasoning is what matters. These restraints rest on a mutual exchange, and an essential part of that exchange is the employer’s continued willingness to employ you. When the employer ends the relationship without cause, that destroys the mutuality the covenant depends on. The Court added that an employer shouldn’t be allowed to use an anticompetition clause to cripple a former employee economically while simultaneously denying other employers that person’s services.
Post involved a pension forfeiture clause, so it isn’t a blanket rule that every covenant evaporates when you’re fired. But if you were let go without cause and your former employer is now pointing at a covenant or a forfeiture provision, that mutuality question belongs in the conversation.
A Few Things the Letter Won’t Tell You
Three points that tend to surprise people, including some lawyers.
First, the employer has to win on everything. A New York covenant is reasonable only if it’s no greater than needed to protect a legitimate interest, doesn’t impose undue hardship on you, and isn’t injurious to the public. BDO Seidman put it in one line: a violation of any prong renders the covenant invalid. Not narrowed. Invalid.
Second, the employer carries that burden. Brown & Brown holds that in New York the employer must prove all three prongs before any burden shifts to you. And these covenants are strictly construed, because of what the courts have called powerful considerations of public policy against sanctioning the loss of someone’s livelihood. Ambiguity cuts your way.
Third, an out-of-state choice of law clause is not the end of the story. Brown & Brown involved an agreement choosing Florida law, which places a far lighter burden on employers, requires courts to narrow overbroad restraints rather than void them, forbids considering hardship to the employee, and directs courts to construe the covenant in the employer’s favor. The Court of Appeals held that applying it to the non-solicitation provision would offend New York public policy, so the clause didn’t control.
What to Bring to the Conversation
The agreement itself, and the date you signed it. Whether it arrived with the offer letter, on your first day, or years later with a promotion is a fact a court weighs.
What happened at the signing. Was it explained? Could you take it home? Had you already resigned from your previous job? Did anyone mention it before you accepted?
The client list, sorted into the three piles described above.
Whatever the employer says it’s protecting, so it can be tested against what the law actually permits. If the answer amounts to you being experienced and them preferring you not compete, that is not a protectable interest in New York.
And how the job ended, and whether there was cause.
The Bottom Line
The letter costs your former employer almost nothing to send. It usually reflects no considered judgment about whether the covenant would survive a challenge, because it doesn’t have to. It works when you believe it.
New York law is a good deal less friendly to that letter than its tone suggests. Your skills and experience are yours. Clients you brought in are yours. Clients you never served sit outside what the law protects. The employer has to prove every element. And whether a court will rescue an overbroad covenant depends on whether the employer overreached to get your signature in the first place.
Which means the broader they wrote it, and the harder they pushed you to sign, the worse their position may be.
Don’t turn down the offer because of a letter. Have someone read the actual agreement against these standards first.
Risman & Risman, P.C. represents employees throughout New York and New Jersey in non-compete, non-solicitation, and executive separation matters. Call 212-233-6400 or contact us online.
This article discusses New York law in general terms as of October 2026, and the law in this area is actively changing. It is not legal advice, and reading it does not create an attorney-client relationship. Every restrictive covenant is different, and so are the circumstances under which it was signed and the way the employment ended. Those details change the analysis. If you are holding a non-compete or have received a letter about one, have a lawyer review your actual agreement and your particular situation before you make a decision.