*1 preferred, persuaded Appellate we are correctly Division rejected procedural grounds. defendants’ laches defense on No analysis dispose further appeal. needed to of that issue this Our decision not to address represents the merits of the defense judgment modification of the Regarding below. the “other harass evidentiary question, ment” affirm we the determination of the Appellate substantially expressed Division for the reasons in that I, opinion court’s supra, N.J.Super. Mancini A.2d 185. modified, judgment Appellate
As Division is affirmed. For Justice PORITZ and affirmance modified —Chief LONG, VERNIERO, LaVECCHIA, ZAZZALI, Justices ALBIN and WALLACE —7.
Opposed—None.
Argued February May 2004 Decided 2004. *4 Sandler, appellants argued the cause Rodman Debbie for (White Williams, attorneys). Schall, (Schall argued
Richard M. respondent the cause & Barasch, attorneys; Barasch, Mr. Schall and Patricia A. on the briefs). Samo,
Mark A argued Saloman and John J. the cause for (Proskauer amicus Employers curiae Jersey Association of New Rose, attorneys; Goldstein, counsel; Saloman, Marvin M. Mr. Samo, brief). Mr. Mr. Goldstein and Richard Reig, S. on the Schorr, Alan H. argued the cause for amicus curiae National Employment (Alan Lawyer’s Jersey Association-New H. Schorr Associates, attorneys). & Wissert,
David M. submitted a brief on behalf of amicus curiae (Lowenstein Jersey Sandler, New Defense Association attorneys; Wissert, Lester, Mr. Lauren M. Hollender and Martha L. on the brief).
PER CURLAM.
Plaintiff, Maw, Karol filed this action under the Conscientious Employment Act, (CEPA), Protection N.J.S.A. 34:19-1 to -8 after refusing she was terminated for employment an agree execute containing do-not-compete ment provision. She claimed that her impermissible retaliatory committed action when it ter employment minated her sign employ because she refused to an perceived ment contrary that she policy. disagree judgment Division, We Appellate reverse the substantially expressed for the cogent reasons in the dissent Judge Communications, Inc., Cuff. Maw v. Advanced Clinical N.J.Super. 820 A.2d (App.Div.2003) 118-122 (Cuff, J.A.D., dissenting). Briefly, following we add the expla nation of our conclusion that present has failed to a cause of action under CEPA.
I. prohibits taking retaliatory CEPA from action against to, “objects participate who or refuses any activity, policy practice employee reasonably or which the *5 policy- public incompatible ... is with clear mandate
believes health, safety protection of concerning public or or welfare 3c(3) (Section 3c(3)). In this ease environment.” N.J.S.A. 34:19— meaning question time a as to the we confront the first policy.” specifically, public More we phrase “clear mandate scope mandate” of a “clear must determine the contours 3c(3). begin Section We with the to assert a claim under sufficient statute, policy expressed that a in the form of a public observation law, regulation pursuant is not what was promulgated rule or 3e(3). hold N.J.S.A. under Section To so would reduce meant 3c(1)(Section 3c(l)) employs surplusage, to mere since 34:19— evaluating legal precepts a frame of reference for an those employer’s conduct. 3c(l) said, helpful question resolving is
That Section 3c(3) 3c(l), the to a before us. Like Section reference Section conveys policy” legislative preference of public “clear mandate readily recognized of action for a diseemable course policy suggests public public A “clear mandate” of interest. statute, regula or analog provision, to a and rule an constitutional 3c(3), pursuant that, promulgated to law such under Section tion degree respect high there should be certitude Indeed, acceptable unacceptable prior verses conduct. decisions similarly discussing involving CEPA claims have reasoned when 3c(3) E.g., Higgins Valley Hosp., v. claims. Pascack Section (1999) 404, 420, (citing v. 730 A .2d Mehlman Mobil N.J. (1998) Corp., 153 N.J. 707 A.2d 1013-1014 Oil (finding against “prohibits that CEPA retaliation objects practice who to an that violates a country’s public expressed industry safety foreign policy, as in an guideline”)). legislative approach vis-á-vis a “clear” mandate policy bespeaks a desire to have CEPA actions arguments employees employers into over devolve between is, not, public policy. approach and is also what correct Such legislative requirement opposed of a fits with the “mandate” as *6 rigorous type public policy less standard for is implicated. analysis
The dissent below is in accord with our
respect
CEPA, Maw,
purpose
discussion
of its
of both the
supra,
444-446,
(Cuff,
N.J.Super.
359
at
II. matter, plaintiffs dispute In employer this with her private possessed in nature. Plaintiff concedes that she eonfiden- information, objection that she no to proprietary had
tial noncompete preclude portions agreement that would those employers. sharing with future from such information her words, plaintiffs dispute true was over reasonableness other noncompete argument she was agreement, terms of prevent tried to her from if and when her free make uniformly company. telling that working It is another noncompete signing would refers the effect that field,” ability employment in her and that “she have on “her to find defen- legitimate was no business reason for believed that there agreement.” noncompete into a require dants her enter added). Allowing admittedly private dispute (Emphasis plaintiffs go her forward under CEPA’s rubric dilutes with *7 salutary goals. statute’s dispute notwithstanding, private plaintiffs nature of
The
policy
must fail
our
her CEPA claim
because
State’s
agreements
respecting noncompete
is not set forth in a “clear
mandate,”
health, safety
or
not
“concem[]
and does
3c(3).
protection
welfare or
of the environment.” N.J.S.A. 34:19—
parameters
generation ago,
a
our
sketched the
Over
Court
broad
determining
noncompete agreement
a
for
whether
was unenforce
Bros.,
25,
Doyle,
A.2d 577
Whitmyer
able.
Inc. v.
58 N.J.
274
571,
(1971);
Indus.,
Malady,
v.
N.J.
A.2d 53
Solari
Inc.
55
264
(1970).
Solari,
dissent,
canvassed,
much as
we
has the
agreements,
acknowledged
noncompete
historical treatment
agreements.
previously
negative
of such
55 N.J.
held
view
at
575-84,
writings on
But
was a
held then
Solari
Jersey’s
per
time is well
for the
of New
void
se
due
abandonment
partial
permits
rule
total or
rule
favor of the
which
447
noncompetitive agreements
enforcement of
to the extent reason
under
able
the circumstances.” 55
264
N.J. at
A.2d at 61. In
Whitmyer,
Solari,
supra,
expanded
establishing
we
what is
Solari/Whitmyer
now known as
determining
test
whether
noncompete agreement
a
is unreasonable and therefore unenforce
Solari/Whitmyer test,
noncompete
able. Under the
protects
is
“if
‘simply
legitimate
enforceable
interests of the
employer, imposes
hardship
no undue
on the
and is not
injurious
Ciavatta,
public.’” Ingersoll-Rand
to the
Co. v.
110
609, 628,
(1988)
N.J.
542
(quoting Whitmyer,
A.2d
supra,
581).
32-33,
N.J. at
274 A.2d at
prongs
The first two
of the
require
balancing
employer’s
test
interests in protecting
proprietary and confidential information and the
hardship
asserted
employee.
on the
Ingersoll-Rand, supra,
N.J. at
requires
A.2d at 892. The
reviewing
analyze
third
court to
public’s
in fostering competition, creativity,
broad concern
ingenuity.
Solari/Whitmyer
Id. at
Although dissenting may colleagues our contend that do- are, not-eompete provisions be, per illegal, or point should se fact, they per are illegal se. It is not accurate describe our caselaw, current which allows enforcement reasonable non- compete agreements, aas “clear mandate” disfavors such agreements. Solari/Whitmyer multi-part, test fact- *8 inquiry. only multiple intensive Not must differing interests of identified, parties also, and entities but be those interests must be gauged legitimacy. application for reasonableness and The of that here, matter, general simply test and as a not type does evoke the a policy” of “clear contemplated by mandate of that was 34:19-3c(3). N.J.S.A. by non-compete
We are agreements informed amici that part employment. a common accept are of commercial We do not numbers, premise employers, large as that engaging are in a 448 health, dangerous
practice “indisputably is to the that Dzwonar, A.2d at supra, N.J. at safety or welfare.” appropriate 901. is more characterize the business communi It adapted Solari/Whitmyer approach recog ty having as to the agreements purpose so noncompete can serve a useful nizes that long is not unreasonable. as dispute plaintiffs private over terms
We conclude employment agreement do-not-compete provision in does her public policy of a implicate not violation clear mandate 3c(3) noted, by previously contemplated of CEPA. As Section If options available to she could did have her. liking, dispute negotiate were to was free terms that her she if of those terms and when her reasonableness agreement. The then attempted to enforce burden would litigation, counsel initiate on the to hire and enforcement 54-55, Solari, nothing supra, 55 A.2d at N.J. employee-defendant preclude an such an action from would any asserting and all affirmative defenses counterclaims. Ingersoll-Rand, A.2d supra, 110 N.J. at at 884-85. do, however, is to alter contract What we decline to the traditional litigation recasting remedies available restrictive-covenant 34:19-5e, dispute as a CEPA action. N.J.S.A. -5f. See III. judgment Appellate Division reversed. ZAZZALI, dissenting. Justice opinion fully majority Appellate As in the set forth Division, the facts this case who was fired concern agreement. refusing sign non-compete brought She suit against employer, alleging her her termination violated (CEPA), Employee Act N.J.S.A. 34:19-1 Conscientious Protection -8, contrary right against discharge and her common-law public policy. allegations complaint implicate Because the *9 clear public policy majority, adopting mandate of that the below, dissent I apprehend, respectfully fails to must dissent.
I. This to ease comes the Court on a motion dismiss for failure Therefore, to state a claim. alleged the facts as complaint, well therefrom, as as all reasonable inferences be drawn must Inc., Cablevision, Craig be taken as true. v. Suburban 140 N.J. 623, 625-26, (1995). 660A.2d 505-06 1997, plaintiff began working Karol Maw for defendant Inc., Communications, Advanced designer. Clinical a graphic performing Plaintiff had been enough promotion well to warrant position Graphic of Senior Designer January 2000. Thereafter, pursuant company policy promulgated to a new January required employees defendant all its at or above sign non-eompete the level of “coordinator” to as a continuing employment. condition of Among things, pro- other upon ceasing defendant, vided that to work for enjoined working any competitor would be from or customer of period years. defendant for a of two presented
Plaintiff copy proposed was with a “Noncom- Covenant,” pete which informed that her she was free to seek advice of respect counsel with to the document. Plaintiff consult- father, attorney, her suggested changes. ed who some Plaintiff presented those revisions to defendant’s Human Resources De- partment. A representative department her, of that informed however, “it [cjompany is the President’s ... he is not going any exceptions.” sign to make Plaintiff did not docu- ment, prompting defendant inform her had letter she “terminated noncompliance company policy.” been based on with suit, claiming Plaintiff filed that her violated CEPA right against and the common-law termination in violation public policy. clear mandate of Defendant moved dismiss the upon granted. claim for failure to a claim which state relief can be 4:6-2(e). motion, granted R. Law finding Division *10 public-policy a interest complaint to aver sufficient
the failed that, similarly, the it lacked meaning of CEPA and within the the common law. requisite showing to state a claim under v. Advanced Clinical Appellate The Division reversed. Maw (2003). Communications, Inc., 420, 105 N.J.Super. 820 A.2d 359 concluding as a matter the erred in that It held that Law Division law, policy public a violation plaintiff did demonstrate 427, A.2d necessary action. Id. at 820 at 109. to sustain a cause of Instead, by “may, agreement proffered defendant the because circumstances, public surrounding the depending on violate the CEPA[,]” necessary under the policy support a cause of action an plaintiffs claims before she had court ruled “dismissal through prema opportunity develop discovery case was her reasons, plain For court also reinstated ture.” Ibid. similar wrongful discharge in violation of tiffs common-law claim for recognized in v. public policy, as Pierce Ortho Pharmaceutical (1980).1 72, 505, 441, 58, Corp., A.2d 512 Id. at 820 84 N.J. 417 A.2d at 117-18. however, dissent, Division did not err stated that the Law dismissing complaint, employee’s “an interest because private
freely employer primarily a moving from 442, beyond protection provided at 820 interest CEPA” Id. (Cuff, J.AD., Consequently, the dissenting). at dissent A.2d 118 “essentially dispute private viewed a between the matter employee.” Id. at A.2d at 122. 820 Deter- issue, mining public policy to at no clear mandate of dissent concerning test demonstration of Because same the requisite a Pierce, stated under Division held Appellate plaintiff policy applies Maw, at claim under the common law. A.2d supra, N.J.Super. court address the of CEPA. It 117-18. The went exclusivity provision although forego a who a claim must found that CEPA pursues plaintiff unjust making claim, would be to force a into that decision common-law party pleading stage proceedings at the of the before court has determined whether Ibid. I find both Division’s either action lie. may aspects Appellate reasoning therefore, cause of and, to be sound subsume common-law action CEPA into claim. my analysis concluded that failed to state a claim under either CEPA or the common law. Ibid. Division, Appellate
Because of the dissent
defendant
2:2-1(a)(2).
appealed
right.
as of
R.
now adopts
This Court
analysis
below, finding
of the dissent
no
clear mandate of
policy sufficient to
anything
dispute
render this matter
but a
merely “private
in nature.” Ante
II. A. Employee provides, The Conscientious perti- Protection Act in part, that nent against [a]n shall not take action any retaliatory because employee [o]bjects ... to in or employee to, or participate any activity, policy refuses which
practice with a clear ... incompatible believes reasonably concerning mandate public policy or public health, welfare or safety of of the environment. protection added).] [N.J.S.A. 34:19-3 (emphasis necessary wrongful elements a claim for state termi- provision dispute. nation under that of CEPA are not in A plaintiff (1) must demonstrate that: he or she believed that his or reasonably her employ violating regulation promulgated er’s conduct was or law, either rule, pursuant (2) law, or a clear of mandate he or she a “whistle- public policy; performed (3) blowing” described N.J.S.A. in activity 3c; an adverse action employment 34:19— (4) against
was taken him or and her; a causal connection exists between whistle-blowing and the adverse action. activity employment (2003).] [Dzwonar McDevitt, v. N.J. 177 451, 828 A.2d 900 893, Dzwonar, viability in present As hinges claim complaint prong whether the satisfies first of four-prong is, appears plaintiff test. That clear that meets the other three prongs (i.e., participate activity because she refused as a direct conse
entering
agreement) and was fired
into the
dismiss,
Thus,
a motion
quence
to survive
of that refusal.
only
which a factfinder ultimate
set forth facts from
need
belief
on the basis of
reasonable
ly
that she acted
could conclude
agreement, her
sign
non-compete
demanding that
she
public policy.
Ibid.
violating a
mandate of
employer was
clear
law,
as matter of
claim a
a court can dismiss CEPA
And before
law, rule,
satisfy
or clear mandate
it must
itself
no
complained-of conduct.” Id. at
“closely
to the
policy
relates
B. jurispru- years, Anglo-American more than four hundred For implications non-compete recognized public-policy has dence Blake, Employee Agreements Not to agreements. See Harlan M. (1960) (tracing jurispru- Compete, Harv. L. Rev. 635-36 post-employment Dyer’s Case Court restraints dence explanation for public-policy Pleas in 1414 and first Common Bacheler, by Queen’s v. decided invalidating Colgate them to 1602). on common-law restraints In the “most cited case Bench trade,” subject opinion on the perhaps most influential issued, Queen’s explored the Bench Chief Justice Parker of ever interests, private, when a citizen contracts both at stake Blake, supra, chosen craft. 73 Harv. away right his to work at his (Q.B. Eng. Rep. (citing Reynolds, L. v. Rev. at 629 Mitchel *12 1711)). Mitchel, including buildings a the defendant leased some Rep. of Eng. at 347. The terms plaintiff. to the
bakehouse would agreement provision a the defendant their included parish of within the St. “not exercise the trade of baker” If during Ibid. five-year term of the lease. Andrew’s Holborn the term, up competing set to violate the the defendant were The fifty pounds. to Ibid. plaintiff would entitled shop, the be defendant, provision; plaintiff brought to suit enforce however, agreement void. Ibid. that the was maintained law, Examining prior case the Chief Justice discerned the by implicated voluntary various interests of restraints trade. Id. at 350. He agreements observed that such can result in “mischief party, by livelihood, ... to the loss his and the subsistence family publiek, by his ... depriving [and] to the it ] of a[ useful explained member.” Ibid. The court then aggregate further harm occasioned such beyond restrictions that extends contracting concerns of the parties: great Another reason is, the abuses these voluntary restraints are liable to; as for labouring instance, from who are for corporations, exclusive advan- perpetually tages in and to trade, reduce it into as few hands as possible; likewise from give
masters, who are to their much vexation on this apt apprentices account, and to use indirect many to such bonds from practices them, lest should procure they prejudice them their when custom, they come set up themselves. [/6td] acknowledged court the circumstances in which such re- arrangements might beneficial,” strictive be “useful and for in- stance, “to prevent a being town from any overstocked with particular trade” or to facilitate the sale of a business or trade no longer profitable proprietor. to its weighing Ibid. In those com- however, peting considerations, the court concluded that the mis- (if “plainly appears any) only chief ... but the benefit can be presumed.” Underscoring point Id. at 351. the mischief only private, public,” “not pronounced but court the rule to presume be “prima that the law will such contracts to be facie bad” until the facts of an individual case indicate that the restric- tion constitutes “reasonable useful contract” that “the courts justice will [e]nforee[.]” Ibid.
Applying case, particular the rule to the facts of the court plaintiff held that the had presumption invalidity overcome the unjust because would have been allow defendant receive the benefit of the permitting lease while him to renege promise his to allow have the benefit of neighborhood.” the “trade in this Finding Id. at 352. the re- “exactly straint proportioned to the consideration” —inas- five-year much as term the restraint was coextensive with that of the lease —the court determined “the concern of the *13 454 sides,” enforceable. equal and the restriction on both held
[to be] private, Thus, public, as as concerns kept well Ibid. the court analysis. keenly throughout its its within focus Mitchel, Jersey in histori approach in New with the Consistent invalid as restraints cally presumed such covenants be we have therefore, and, em public policy unless an violative of on trade agreement. its ployer the reasonableness demonstrates (Ch. Harman, 189, 7 Eq. 42 N.J. A. 38-39 v. Mandeville 1886). who, exchange in for an a doctor involved Mandeville practitioner, perma opportunity with established employment in the away right practice anyone else nently bargained his 187-88, A. at As Chancellor City Id. at 38. Vice of Newark. only agreement, refusing to explained in enforce the Van Fleet employment are those restricting that will be enforced covenants in which a fair to the of the is such as to afford interest party the restraint only protection given, large with the interest it is and not so as interfere
favor whom larger can restraint than the necessary protection party Whatever public. if is, It be and of no benefit either. can only oppressive, oppressive, ground being void, and on the law, public policy, unreasonable eye injurious is the of this rule, stated, as thus law to the interests of the public. state. A. at [Id. 39.] agreement, by non-eompete which involving In case another himself, absolutely, generally employee had and “restrained exercising place, from talents limitation as to time or his without coach-pads,” Chancellor making gig-saddles and Vice and skill void, repug account of its Fleet held that “such contract is on (Ch. Teas, 171, 173 public Albright N.J.Eq. nancy policy.” v. 1883). implications upon public-policy of such a Elaborating covenant, explained, prevents competition, and thus en “It he monopoly.” prices, exposes to all the evils of hances Ibid. cases, regarding have echoed the concerns more recent we Mitchel, originally covenants that were articulated
restrictive recognizing private interests explicitly both instance, For in Solari implicated these restraints trade. *14 Industries, 576, 571, 53, Inc. v. Malady, 55 N.J. 264 A.2d 56 (1970), public-policy we observed that distinguish considerations employee non-compete agreements from designed restrictions good protect the will attendant to the of sale a business. We explained although “freely enforceable,” the latter are the judicial former will approbation only they meet with “simply if protect[] legitimate the employer, impose[] interests of the no hardship employee, injurious undue on the [are] to the public.” subsequently tripartite test, Ibid. We reiterated that expressly recognizes public which the as interest distinct from the private employee. Ingersolb-Rand concerns of the Ciavatta, 609, 628, 879, (1988); v. Co. N.J. 542 A.2d 408, 411-12, 1161, v. Weinberg, Karlin 77 N.J. 390 A.2d 1163-64 (1978); Bros., Whitmyer Doyle, 25, 32, Inc. v. 58 N.J. 274 A.2d 577, (1971). Ciavatta, recognized 580-81 As we among not least public-policy protect the considerations is the desire to the con suming public marketplace from posed “naked restraints” on the by employer attempts extinguish competition from a former 635, employee. 110 N.J. at at A.2d 892.
This brief historical overview demonstrates that vindication of consistently the interest has at been heart our of interpretation eovenants-not-to-compete. of More at than stake merely subjugation single the isolated of a Although worker. Solari, hardship” prong supra, “undue of takes that consideration account, jurisprudence, into our again, time and time has made other, implicate clear such restraints of trade interests. repeated judiciary Such instruction amounts to a clear overly mandate that restrictive covenants restraint future employment Jersey are in public policy. violation New
Although
majority attempts
to make much
this
Court’s
Solari,
rejection
“per
supra,
of the so-called
se” rule in
The
be,
“are,
per se
or should
arguing
covenants
restrictive
somehow
appear to
both
stem
illegal,”
were
severability of non-
specifically the
per
rule concerned
se
found
be unenforceable
compete agreements that were
Solari,
Prior
N.J. at
So
Solari does
non-compete agreements.
not
treating
Covenants
prior case law
compete
prior to our decision in that case.
were enforceable
See,
Mandeville,
e.g.,
supra,
N.J.Eq.
at
III.
spite
non-compete agreements
the manner which
consis
viewed,
tently
majority adopts
have been
the assessment
“an
employee’s
freely moving
dissent below that
interest
employer
from
primarily
private
beyond
is
interest
CEPA,” Maw,
protection provided by
supra,
N.J.Super.
(Cuff,
and,
J.A.D.,
therefore,
dissenting),
Defendant’s alternative of its motion proves equally unpersuasive. dismiss posits It that until at- tempts agreement, way telling to enforce the there is no of Thus, argu- whether or not the restriction is unreasonable. the runs, plaintiff ment could not held have a reasonable belief that policy employer the in of until was violation
the covenant theory, support of that defendant attempted enforcement. proffered weight on clause of the places particular the employees work else- permission to allow provides that that majority of this unreasonably will not withheld. where by observing the argument that implicitly Court embraces not leave of a of action does deprivation CEPA cause dispute “was the remedy inasmuch as she free without agreement] if and her non-compete when [of reasonableness agreement.” Ante 179 N.J. at attempted employer enforce at A.2d 609. First, a number of levels. reasoning That stumbles on challenge this stating employee that this was free restrictive forum, majority acknowledge that fails to covenant another inadequate pub- to vindicate the contract remedies are traditional dispute. type lic at in this Absent cause interest stake public-policy exception to law’s action under CEPA or common nothing employer an employee, prevents termination an at-will demanding agree employee to the most unrea- from that such sonably non-compete agreement con- as a condition of restrictive refuse, today’s holding employment. employee tinuing Should the employer impunity with and leaves the allows the to terminate job. relief: find another employee but one avenue real Second, majority’s approach ignores the obvious in terrorem restricting mobility. As employee such covenants have in effect plaintiffs suggested argument, has once counsel sought- signature, his or her has derived its affixed benefit, ultimately irrespective of a court whether deems after employees not. are reasonable or New with covenant or, matter, employers prospective with the for that resources — effectively patently challenge even the most unrea- inclination —to covenant. sonable restrictive
Third, noted, policy and law this State is the fundamental covenants-not-to-compete public policy until are violation is, proven until the demonstrates otherwise —that *17 they approach, are reasonable. Consistent with that in the CEPA context, equitable treating as in common-law or actions such agreements directly, employer the should bear the burden of case, demonstrating particular that in the circumstances of a proffered agreement would have been enforceable as a reasonable context, restriction. In the CEPA as in the more traditional scenario, presents common-law question that the court. however, setting, either that determination cannot be made pleadings. Although question it is a for the bench and not the jury, inquiry conjunction constitutes that must be made on, with a hinge review the relevant facts. The outcome will among things, legitimate other business interests of the em- ployer by that are served restriction relation to the geographic, temporal, placed upon and substantive restraints employee. Although inquiry may prove such an possible at the time, summary-judgment stage proceedings of the which —at employer may prevail by well court bound averments of —a complaint cannot a ruling make such aon motion to dismiss.
Accordingly, the approach, adequately better which would safe- guard simultaneously concerns while vindicat- ing interest, would be to hold that has stated a claim alleged under CEPA sign when she has she refused a non-compete that she believed to be in violation public policy. opportu- The would then be afforded the nity to proffered agree- demonstrate the reasonableness of the basis, ment aas defense to the action. I On that would affirm the judgment Appellate of the complaint go Division and allow the forward.
I am allowing aware concern some that a cause of action in might these and similar chilling circumstances have a effect on employers’ legitimate non-compete agreements, use but argument unavailing. approach I propose would salutary encouraging employers have the effect of into enter with, agreements flout, comply rather than sound policy. Employers who do draft restrictive covenants tailored to *18 pre- legitimate can be confident of business interests
serve their vailing subsequent challenge wrongful for dismissal against a they not to retain under CEPA or the common law should choose agree terms. at-will who refuses reasonable Moreover, agree- employers to enforce executed such will able Conversely, equity. in a incorporating terms court of ments those should illegitimate agreements fact will be disfavored that present for no cause concern.
IV. sum, allegations forth I would hold that has set wrongful complaint that a claim for termination under her state CEPA and the law. There exists in this State both common non-compete agreements overly that clear mandate restrictive policy. claims she acted on the bona violate Plaintiff that employer, asking that her her enter the belief fide here, employment sought her without at issue to restrain future and, legitimate thereby, public policy. Con- reason violated sistency agree- jurisprudence respecting non-compete our with employers the burden of demon- ments demands should bear strating arrangements in the suspect those are reasonable case. this has circumstances of individual Because defendant and, indeed, possibly have so cannot made such done dismiss, showing I judgment a motion affirm would Appellate proceed- Division and remand the cause further ings. joins opinion. in this
Justice LONG VERNIERO, For reversal —Chief PORITZ and Justices Justice and WALLACE —4. LaVECCHIA For LONG and ZAZZALI —2. affirmance —Justices