Provided by:  Jennifer Kirschenbaum, Esq.


November 16, 2022


Hi Jennifer,

I would like to accept a new position that is in my non compete radius.  How do I escape my non compete?  Is it even enforceable? 

Thank you,
Dr. J


In NY and NJ, and other nearby states, non competes are enforceable if reasonable in scope and duration, and costly to challenge.  The best path to escaping a non compete's reach is to seek relief from the party with the contractual hold on you.  You can request the non compete be waived, or limited to exclude a particular employment. If the new position is not with a threatening competitor, perhaps you will be granted the request.  Be mindful that proper waiver, exclusion or forfeit of the non compete may require a writing, and may have to be signed by both parties.  The substance of any contractual change, amendment or modification, will likely be dictated by the document holding the non compete (usually your employment agreement).  Now, you'll be looking to modify a legal document and you want the waiver to be effective, so, please work with legal counsel.   Our approach for waiver will be simple and straightforward, assuming the prior employer will cooperate.  A review of your contractual restriction language will be necessary. 

Our approach to any waiver will vary depending on the facts of your employment and the employer at issue.  How we approach and who will have a big impact on our success...