Employment agreements often include restrictions barring people from soliciting, recruiting or “raiding” employees from their former workplaces. Unlike covenants not to compete with a former employer, the purpose of an anti-raiding provision is to keep an employer’s current workforce intact for a period of time and to stop a former employee from provoking a mass exodus. Until recently, New York courts largely ignored the enforceability of such anti-raiding provisions. Of the few courts to discuss the enforceability of anti-raiding provisions, some have likened them to covenants not to compete with a former employer. But, there are significant differences between these types of agreements: an agreement barring someone from joining a competing business arguably hinders one’s ability to earn a livelihood, whereas an anti-raiding agreement does not similarly constrain the departing employee’s ability to work. Courts should recognize these inherent differences between an anti-raiding provision and a covenant not to compete and should not try to analyze their respective enforceability under the same test.
In January 2012, the federal court in the Western District of New York analyzed the distinctions between anti-raiding provisions and non-compete agreements, explaining why the differences impact the enforceability of anti-raiding covenants. Renaissance Nutrition v. Jarrett, No. 08-CV-800S, 2012 WL 42171 (W.D.N.Y. Jan. 9, 2012). The court explained that “a non-recruitment clause, as opposed to a non-compete clause, does not infringe on an employees [sic] ability to engage in an occupation, but merely infringes on his ability to recruit former co-workers to engage in competitive business.” Id. at *5. The court found that this important distinction makes anti-raiding provisions “inherently more reasonable and less restrictive” than non-compete provisions. Id.
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