Learning from Alumni Practitioners: The Implications of Non-Compete Covenants

At the end of the Fall 2017 semester, first-year students heard from CUNY Law alum practitioners about employers’ use and abuse of non-compete covenants, the primary legal issue in their lawyering seminars simulation.

Professor Susan Markus, director of Legal Writing Center and one of the lawyering faculty brought together a panel of alumni working in the field of employment law to discuss the uses and abuses of non-compete covenants. Erin Lloyd ’06 of Lloyd Patel LLP, David Rosten ’86 of Law Office of David Rosten and Dennis Torregiani ’00 who serves as a senior administrative law judge for the Unemployment Insurance Appeals Board in New York City, made up the panel.

“Having spent 14 weeks analyzing the enforceability of a non-compete covenant against a food-truck employee, the students were primed to hear how the controversial contract clause is viewed and enforced in real life; particularly in light of the growing use of non-competes in a variety of law-wage contexts,” said Professor Markus.

Non-compete agreements, which are subject to enforcement by state courts, serve to restrict an employee from going to work for competitors. Torregiani pointed out that there is a tension between upholding an existing contract and the right of people to make a living.

Dennis Torregiani ’00, David Rosten ’86 and Erin Lloyd ’06 discuss non-compete agreements in a panel discussion moderated by Professor Susan Markus.

Lloyd, who overwhelmingly represents employees in employment disputes, emphasized that a lot rests on the first step in the process, the temporary restraining order hearing, where the employer makes a case that the non-compete agreement is being violated.

The panelists discussed the power dynamics of this type of dispute, noting that employers often have more financial resources to pursue the case for longer, which disadvantages the employee.

Torregiani explained that in his role as an arbitrator of disputes, he spends a lot of time deciding whether an individual has been properly classified as an employee or whether he or she is really an independent contractor, which has broad implications for employment law cases.

Lloyd noted that in New York, Uber is allowed to classify its drivers as independent contractors which means that the New York human rights law does not apply to them, and opens the door to discrimination. In California by contrast, Uber drivers are classified as employees.

Lloyd also pointed out that the use of non-compete agreements can have ripple effects on the economy, using the example of the technology industries in California and Massachusetts. In California, non-compete agreements are not allowed, while in Massachusetts, they are.

“The panel discussion brought to life many of the legal and economic issues students grappled with as they analyzed the issues in the lawyering seminar simulation, said Professor Markus. “Many CUNY Law students come to law school motivated to protect and improve workers rights. Hearing from lawyers in the field was informative and inspiring.”

Torregiani urged students to seize opportunities to work on real cases assisting people, and approach that work with humility, persistence and creativity. “Part of your job as a lawyer is to figure out what this piece of paper [any legal document] can do for your client,” he said.

WATCH A VIDEO OF THE DISCUSSION