Non-solicitation agreements are enforceable in New York, but only when they pass a strict three-part reasonableness test. The New York Court of Appeals set that test in BDO Seidman v. Hirshberg: the restriction must protect a legitimate business interest, must not impose undue hardship on the employee, and must not harm the public.1Justia. BDO Seidman v. Hirshberg Fail any one prong and the whole clause falls. Courts do not treat these agreements as presumptively valid; the employer carries the burden of showing the restriction is reasonable, and judges are willing to strike or trim clauses they consider overbroad.
What a Non-Solicitation Agreement Actually Restricts
A non-solicitation clause stops you from reaching out to your former employer’s clients, prospective clients, or fellow employees to pull them away. It does not stop you from working in the same industry or joining a competitor. That is the difference between a non-solicitation agreement and a non-compete, and it matters for enforcement: because a non-solicitation clause leaves your career mostly intact, New York courts tend to enforce it more readily than a flat non-compete, provided it still clears the three-prong test.
Read your clause carefully for what exactly it bars. Some agreements cover only clients you personally served. Others sweep in every client of the company, prospective clients you never met, and every coworker you knew. The broader the sweep, the more exposed the clause is to being struck down or cut back.
The Three-Prong Reasonableness Test
Under BDO Seidman, a non-solicitation restriction is reasonable only if all three of these are true at the same time:1Justia. BDO Seidman v. Hirshberg
- The restriction is no greater than needed to protect the employer’s legitimate business interest.
- It does not unreasonably burden your ability to earn a living.
- It is not injurious to the public.
Clearing two out of three is not enough. The framework balances the employer’s right to protect what it built against your right to work and the public’s interest in a competitive market.2Cornell Law Institute. BDO Seidman v. Hirshberg
What Counts as a Legitimate Business Interest
This is the prong employers lose on most often. New York recognizes three categories of interests worth protecting with a non-solicitation clause:1Justia. BDO Seidman v. Hirshberg
- Trade secrets and confidential information, such as proprietary formulas, processes, or business strategies.3New York State Attorney General. Non-Compete Agreements In New York State
- Confidential customer relationships the employee developed through the job, especially where the employer invested real resources in building that goodwill over time.
- Unique or extraordinary services, where the employee’s skills are so specialized that their move to a competitor causes distinctive harm.
The BDO Seidman court described the real concern as stopping a former employee from exploiting client goodwill “which had been created and maintained at the employer’s expense, to the employer’s competitive detriment.”1Justia. BDO Seidman v. Hirshberg So if the clients at issue were your personal contacts before you took the job, or if they came in through public channels without any special investment by the employer, the court is far less likely to uphold a restriction covering them.
Where employers consistently lose is when the agreement is really just blocking ordinary competition. A clause that keeps you from contacting anyone in the industry is not protecting goodwill. It is trying to eliminate a competitor, and courts see through that quickly.
Duration and Geographic Scope
New York has no statute capping how long a non-solicitation agreement can last, so courts decide case by case. Restrictions of one to two years generally hold up. Longer terms face steep skepticism and require a compelling justification. Six to twelve months is the easiest range for an employer to defend, because it reads as a cooling-off period rather than a permanent block.
Geographic scope has to match where you actually worked. A statewide restriction will not survive if your accounts were all in the Buffalo area. Judges look for a tight connection between the restricted territory and the places where the employer’s client relationships could realistically be at risk. An overbroad geographic clause can also undermine the employer’s credibility on the rest of the agreement.
Remote Work
Remote work has muddied this. When your “territory” is a home office and your clients are scattered across states, there is no clean answer to what a reasonable geographic boundary even looks like. No published New York decision has directly addressed geographic enforcement where the employee’s home is the relevant location. If you work remotely and your agreement contains a broad geographic clause, you have stronger-than-usual arguments against enforcement.
Was the Agreement Binding in the First Place?
A non-solicitation agreement is a contract, and like any contract it needs consideration. If you signed as a new hire, the job itself is the consideration and that is enough.
The harder question comes up when an existing employee is asked to sign mid-employment. New York courts have held that continued at-will employment can serve as valid consideration, even without a raise or bonus attached. If your employer tells you to sign or lose your job, the continuing employment relationship satisfies the requirement. Decisions including Zellner v. Stephen D. Conrad, M.D., P.C. and Gazzola-Kraenzlin v. Westchester Medical Group have applied that principle.
Agreements backed by something more than continued employment, such as a promotion, a signing bonus, specialized training, or a guaranteed term, generally fare better in court because the exchange looks less coercive. And the employer has to actually deliver on it. If the company fires you shortly after you sign, a court may find the consideration was illusory.
If the Clause Is Too Broad: Blue-Penciling
New York courts can partially enforce an overbroad restrictive covenant rather than void it entirely. This is called blue-penciling: trimming the unreasonable parts down to what would be enforceable and leaving the rest intact.2Cornell Law Institute. BDO Seidman v. Hirshberg
It is not a safety net for employers who draft aggressively. The BDO Seidman court held that partial enforcement is only appropriate when the employer acted in good faith and did not use coercive bargaining power or overreach in the drafting.2Cornell Law Institute. BDO Seidman v. Hirshberg If the judge concludes the company deliberately made the clause broader than needed, counting on the court to clean it up, the court can refuse to blue-pencil and strike the whole thing.
What Happens If You Breach
Employers have more than one tool if they believe you have violated the agreement.
Preliminary Injunction
The most common move is a preliminary injunction, a court order that stops you from continuing the restricted conduct while the lawsuit proceeds. To get one, the employer typically has to show it is likely to succeed on the merits, that it will suffer irreparable harm without the order, and that the balance of equities tips in its favor. Irreparable harm usually centers on lost client relationships that cannot be reduced to a dollar figure. Litigation can run for months while the injunction is in place.
Monetary Damages
Employers can also sue for the business they lost because of your solicitation, including lost profits from departed clients and the cost of replacing recruited employees. Some agreements add a liquidated damages clause fixing a dollar amount you owe for a breach. In New York, liquidated damages are enforceable only if actual damages would be difficult to calculate at the time of signing and the fixed amount is reasonably proportional to the probable loss. An amount that looks like a penalty rather than an estimate of harm will be struck.
One wrinkle to flag: liquidated damages and actual damages are mutually exclusive under New York law. If your agreement has a liquidated damages clause and the court enforces it, the employer collects that number and nothing more, even if the real losses turned out to be larger.
Claims Against Your New Employer
Your new employer can also be pulled in. If a competitor hires you knowing you are bound by a non-solicitation agreement and then benefits from your breach, your former employer may sue the competitor for tortious interference with contract. That claim requires showing the competitor knew about the agreement, intentionally helped procure the breach, and caused damages.
Legislative and Regulatory Developments
New York’s legislature has repeatedly tried to restrict non-compete agreements, and a current version, Senate Bill S9759, is referred to the Assembly Labor Committee. It would ban non-competes for most workers while permitting them only for individuals earning $500,000 or more a year in cash compensation, and would ban them outright for healthcare professionals regardless of salary.4New York State Senate. NY State Senate Bill S9759
The bill targets non-competes specifically. Customer and client non-solicitation covenants would remain permissible even if it passes. Employee non-solicitation clauses are not explicitly addressed, which leaves their status under the proposed law somewhat ambiguous. Similar bills have stalled in earlier sessions, and existing case law continues to govern for now.
At the federal level, the FTC tried to ban non-competes nationwide in 2024, a court found the agency lacked authority, and the FTC formally acceded to the vacatur in September 2025.5Federal Trade Commission. Federal Trade Commission Files to Accede to Vacatur of Non-Compete Clause Rule That rule would not have directly reached non-solicitation agreements in any event. Separately, the NLRB General Counsel has taken the position that overbroad restrictive covenants, including some non-solicitation provisions, can violate employees’ rights under the National Labor Relations Act.6National Labor Relations Board. NLRB General Counsel Issues Memo on Non-Competes Violating the National Labor Relations Act That position matters most for non-supervisory workers whose agreements could be read to stop them from recruiting coworkers for collective action, not merely for a competitor.