Employment & Competition

New York is among several states considering proposed legislation to ban non-competes for most employees. For the time being, however, employers can still use non-compete agreements or other restrictive covenants on employees’ post-employment activity only when actually necessary to protect a legitimate business interest.

As a rule, professional and highly compensated employees are more likely to be exposed to non-public and proprietary information, and their use of that information is subject to restriction during and after employment.

Likewise, non-competes, non-solicits, and non-disclosure agreements are typically enforceable between prospective business partners when exploring opportunities or conducting due diligence.

Yes! New York does not want otherwise qualified employees to be unable to perform when a medical barrier can be overcome with cooperation. Employers in New York are obligated to consider a request for reasonable accommodation that enables an otherwise qualified employee to continue to perform, but the employer does not have to invent a new position or make special rules, that create an undue hardship, for an employee. The law requires both sides to cooperate in good faith. An accommodation request should not be taken lightly. If you are an employee, you are inviting your boss into your otherwise private medical affairs. If you are an employer, you should treat it like you’d want an employer to treat your own family member’s request for help: give it serious attention. An employee is not obligated to share their medical conditions. Just because you’ve never heard about it, doesn’t mean it is not real.

Important note: NY law puts the burden on an employer who knows or should know that an employee may need an accommodation; just because no one asked, doesn’t mean you shoot first and beg and ask questions later.

No! You cannot fire an employee engaged in protected activity just because you’ve been thinking about doing it. While employment remains at-will in New York, the State and City make it increasingly easy for employees to request investigations and enforce their rights. You can view our resources page for links to the multitude of authorities, including the State Attorney General, Department of Labor, Division of Human Rights, and Commissions on Human Rights at the City and County levels. Employees no longer have to wait for a right-to-sue letter from the EEOC before going to court. If you make a questionable decision today, you can get sued tomorrow. The law protects all employees from adverse employment actions when they engage in protected activity, and that list now includes taking or requesting protected leave, requesting religious accommodation, reporting perceived harassment of other employees, reporting perceived illegal or unsafe workplace conditions, demanding better working conditions, considering union activity, and complaining about short or late paychecks just for starters. Before you make important personnel decisions, you should have personnel policies in place to avoid unforced errors.

Being a bad boss isn’t illegal. Unless harassment is based on protected characteristics or protected activity, it’s not illegal. This is affectionately known as the “asshole defense,” and it works. If a boss can prove he was an equal opportunity jerk to all of his employees, he probably didn’t target you for an illegal reason. Your boss doesn’t have to like you or even be nice to you, but in New York, no one can treat you differently because you’ve stood up for your rights, your coworkers’ rights, or because your protected demographic does not fit into their culture.

Timing alone doesn’t prove retaliation. The complaint must be about something legally protected – safety violations, discrimination, wage issues, or other statutory rights. Complaining about workload, scheduling, or general unfairness usually doesn’t create legal protection. We handle real retaliation cases, not employee grievances.”