How Can a Non-Compete Agreement Be Reasonably Enforced ?

In BDO Seidman v. Hirshberg, 93 NY2d 382, 712 NE 2d 1220, 690 NYS 2d 854), the Court of Appeals set forth the "modern, prevailing common-law standard of reasonableness" for the enforceability of employee non-compete agreements (id. at 388). "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; (3) is not injurious to the public" (id. at 388-389). Moreover, a non-compete agreement must also be reasonably limited temporally and geographically (see, Elite Promotional Mktg., Inc. v. Stumacher, 8 AD3d 525, 779 N.Y.S.2d 528). Restrictive covenants in the employment context are disfavored as there are "powerful considerations of public policy which militate against sanctioning the loss of a man's livelihood" Columbia Ribbon & Carbon Mfg. Co. v. A-1-A Corp., 42 N.Y.2d 496, 499, 369 N.E.2d 4, 398 N.Y.S.2d 1004; Reed, Roberts Assoc., Inc. v. Strauman, 40 NY2d 303, 307, 353 N.E.2d 590, 386 N.Y.S.2d 677; JAD Corp of America v. Lewis, 305 AD 2d 545, 759 N.Y.S.2d 388; Savannah Bank, N.A. v. Savings Bank of the Fingerlakes, 261 AD2d 917, 691 N.Y.S.2d 227. The general public policy favoring robust and uninhibited competition should not give way merely because a particular employer wishes to insulate itself from competition (see, American Broadcasting Companies, Inc. v. Wolf, 52 NY2d 394, 404, 420 N.E.2d 363, 438 N.Y.S.2d 482; and Walter Karl, Inc. v. Wood, 137 A.D.2d 22, 528 N.Y.S.2d 94).