New York courts “will not enforce a non-competition provision in an employment agreement where the former employee was involuntarily terminated.” SIFCO Indus., Inc. v. Advanced Plating Techs., Inc., 867 F. Supp. 155, 158 (S.D.N.Y. 1994).  This is because “[a]n essential aspect [of enforceable restraints on employee mobility] is the employer’s continued willingness to employ the party covenanting not to compete.” Post v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 48 N.Y.2d 84, 89 (1979).

“The reasoning of SIFCO and Post relies specifically on the unfairness of a scenario in which the employees against whom non-compete covenants are sought to be enforced have done nothing to bring about their own discharge.” Design Partners, Inc. v. Five Star Elec. Corp., No. 12-CV-2949 (PKC)(VMS), 2016 U.S. Dist. LEXIS 41913, at *43 (E.D.N.Y. 2016).

“Enforcing a non-competition provision when the employee has been discharged without cause would be ‘unconscionable’ because it would destroy the mutuality of obligation on which a covenant not to compete is based.  This rationale applies with equal force to covenants not to solicit a former employer’s clients and employees; solicitation is simply a form of competition.” Arakelian v. Omnicare, Inc., 735 F. Supp. 2d 22, 41 (S.D.N.Y. 2010) (internal citations omitted).

If you have any questions concerning the enforceability of your non-compete agreement, it’s always smart to consult with a New York employment attorney.

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