It should come as no surprise that the long tail of the pandemic has led to tension between labor and management. As employers have, over the past year-plus, begun calling their employees back to the office, those same employees—having adapted to maintain a work-life balance without ever leaving their homes—have resisted. The predictable result has been an increase in labor movement, as workers flock to employers who offer greater flexibility and better perks over the simpler considerations of the past (e.g., gross income).

Employers have long turned to the courts to enforce reasonable restrictive covenants in their employment contracts, particularly non-compete agreements (NCAs) that limited employees’ mobility within their field. Indeed, New York is one such state where reasonable NCAs may be enforced. See BDO Seidman v. Hirshberg, 93 N.Y.2d 382, 388-89 (1999) (“The modern, prevailing common-law standard of reasonableness for employee agreements not to compete applies a three-pronged test. A restraint is reasonable only if it: (1) is no greater than is required for the protection of the legitimate interest of the employer, (2) does not impose undue hardship on the employee, and (3) is not injurious to the public”) (citations omitted; emphasis in original).

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