Nutty Bunny would be well advised to look at Long Time Lurker’s posts here, especially #43, for an approach to an actual answer to her question. I know, for a fact, that NYS Supreme Court (“superior court” almost anywhere else) will sustain noncompete agreements under at least some circumstances, and would recommend that Bunny at minimum look up the principles established in case law, and if unsure go talk to a lawyer first. (IANAL, this is not legal advice, and all the usual disclaimers.)
I was tangentially involved in a very close parallel case that was taken to Appellate Division before being finally resolved. I worked for a state agency that had aided a town(ship) to obtain a Federal grant, and was administering the expenditure of the grant in the town’s behalf. The particular professional employee who had written the successful grant application was the man doing the administration.
As time passed, that employee established his own consulting business, performing the same services for other communities not within the agency’s service area. Eventually he resigned from the state agency, and worked his consulting business full time. I handled the technical paperwork for him at the state agency, and when he “went private” moonlighted for him in the same capacity.
The town in question wanted to keep working with him, not the agency, as they had great respect for his abilities. He initially declined to do so, as there was a provision in State Ethics Law forbidding him from performing the same service for a fee with the same client as he had performed that service for as a state employee. This was, I understand, created to keep professionals from setting up sweetheart deals while on the state payroll and then retiring or resigning to benefit from them, and was slangily referred to as the “revolving door” clause.
In this case, however, the majority of the administration moneys had been paid out to the state already, but the work was not yet finished, and the grant not closed out properly. So the Town Supervisor (CEO) contacted the agency and asked them to withdraw from administration of the grant, and release the ex-employee from the non-compete-equivalent clause. They agreed and the town contracted with him to finish the grant administration. (Ironically, the amount of hours he had to put in to finish the admin. work and close out the grant, and the funds left, meant that he received what was effectively minimum wage for his efforts.)
Some time later, he was contacted by investigators for the State Ethics Commission. As it turned out years later, a vengeful state employee who disliked him had registered a complaint that he was violating the “revolving door” clause. An Ethics Commission administrative law tribunal found against him, he appealed it to Supreme Court, which held for him, and then the Ethics Commission took it to Appellate Division, which commended his willingness to help the town at effectively no profit to himself but stated there was a technical violation of one element of the law, for which they assessed a minimal fine.
So I can speak from personal experience (albeit not as a direct participant, but as someone involved throughout the entire process) that how such laws will apply is very intricate and subject to a lot of legal nuance.
Fear, your statement was true in exactly the same way as “the First Amendment guarantees unlimited freedom of speech” is true: a high-minded generality but one that does not address the specifics that may concern Nutty Bunny. Sure, she has every right to go to work for the client. But she might not like the idea of defending a lawsuit for the equivalent of five years’ salary for violating a case in which the courts will uphold a non-compete clause. Just as I can say anything I like about you – if I don’t mind being subject to a libel suit if I injure your reputation or income-gaining ability by knowingly stating a falsehood about you. Likewise, Nutty Bunny needs to be aware of (1) whether she is in fact subject to a non-compete clause, and (2) whether it’s enforceable in her particular case.
And Jodi as always a masterly performance. (There should be a non-sexist adjective for “masterly” but my thesaurical skills have never found a good one.)
