Question:

Hi Jennifer, 

I have an opportunity I would like to explore but I do have a non compete, and the new place is within the restricted area.  I heard non competes are not applicable in New York.  Can I still take the position? 

Thanks in advance. 
Dr. F

Answer:

So, fake news.  Non competes are enforceable in New York, and most other states (for my employers reading).  The FTC effort to invalidate them has been overturned.  With no law of the land barring applicability, employers are able to push for enforcement, and a judge, could, possibly, depending on the restriction, decide a particular non compete is too burdensome to be enforceable - perhaps that the radius or duration is not reasonable.   But, as the employee, risking a ruling by a judge is not typically seen as a "win".   Getting before a judge for a ruling can take time and money, and often, a future employer is not risking getting dragged in. 

So, what do we do here?  Well, first, I need to see the contractual restriction.  Let's see whether we agree you are restricted.  Second, we will look at the new offer - see if there are any ways around a contractual restriction.  Next, we will discuss how we can get the current employer to waive the restriction, if necessary.  Sometimes, not often, a "buy out" price is actually listed in the employment agreement.  If not, basic maxim - everyone has a price; we can always approach the employer and look to bargain a way out, which would require disclosure...   Do you disclose?  When do you disclose?  What do we offer?  Every situation is different and requires careful measure.   We start at step one, and we look at the contractual restriction, and we'll take it from there.   

One thing is for sure, better to ask this question now then after you resign and sign the new position...