The 2026 State Restrictive Covenant Reset: Auditing Agreements and Litigating Non-Solicits

James R. O’Connor, Partner | Phillips Lytle

James R. O’Connor is a partner at Phillips Lytle whose practice areas include restrictive covenants, trade secrets and unfair competition, employment litigation, business litigation, breach of contract, business torts, and shareholder and partner disputes and dissolutions. He represents businesses in complex commercial litigation in state and federal courts and counsels employers on state and federal employment law, working with human resources professionals, general counsels and business owners to manage risk and comply with the law while minimizing business disruption. He co-leads the firm’s Internal Investigations Practice Team, where his areas of focus include trade secret theft, executive malfeasance, systemic harassment and retaliation, political corruption allegations, and fraud, waste and abuse. He practices from the firm’s Buffalo and New York City offices.

• Education & Credentials

Mr. O’Connor earned his J.D. from Hofstra University School of Law in 2014, where he served as Senior Notes and Comments Editor of the Hofstra Law Review. He received a B.S., summa cum laude, from the University of Detroit Mercy in 2010. He is admitted to practice in New York and Pennsylvania, and before the U.S. District Courts for the Northern, Southern and Western Districts of New York, the U.S. District Court for the Eastern District of Pennsylvania, and the U.S. Bankruptcy Court for the Western District of New York.

• Recognition & Leadership

He serves as Co-Leader of Phillips Lytle’s Internal Investigations Practice Team. He is listed in Chambers USA: America’s Leading Lawyers for Business (2026) and in The Best Lawyers in America (2027), and was named to City & State New York’s Labor Power 100 for 2025-2026 and to the Buffalo Business First 40 Under 40 class of 2026. He was named an Upstate New York Super Lawyers Rising Star from 2022 through 2025. He has been recognized on the U.S. District Court for the Western District of New York Pro Bono Honor Roll from 2022 through 2025 and was honored by the New York State Bar Association Empire State Counsel Program for pro bono work in 2022 and 2025.

• Professional Involvement

Within the American Bar Association, he serves as Regional Co-Chair of the Committee on Practice & Procedure under the NLRA and participates in the Labor and Employment Law Section, the Litigation Section, and the Young Lawyers Division. He belongs to the New York State Bar Association’s Commercial & Federal Litigation Section and Labor and Employment Law Section, and to the Bar Association of Erie County’s Commercial Litigation and Bankruptcy Law Committee and Federal Practice Committee. He serves as Secretary and Fundraising/Development Committee Chair of the Seneca Street Community Development Center, Treasurer of the Charles S. Desmond American Inn of Court, and Secretary of WNY United Against Drug & Alcohol Abuse. Earlier in his career, he served as a volunteer confidential law clerk to Justice Eugene M. Fahey of the New York State Court of Appeals and as a court assistant in Cattaraugus County Family Court within the New York State Unified Court System.

• Experience

Mr. O’Connor has litigated business and employment law disputes for nearly a decade, with a practice that spans restrictive covenants, trade secrets and unfair competition, business torts, breach of contract, and shareholder and partner disputes and dissolutions. His internal investigations work includes trade secret theft, and he has conducted workplace investigations both for clients and as a neutral third party. He authored “Checklist for Pennsylvania-Based Employers” and “Understanding the Compliance Gap Between PA and NY” in the Decision Associates Newsletter in January 2026, and presented “Artificial Intelligence at Work: Employment Law, Ethical, and Trade Secret Considerations” at a Defense Trial Lawyers Association of WNY CLE in October 2024 and “Artificial Intelligence at Work: Employment Law and Trade Secret Considerations” at an Inn of Court meeting in November 2023.

He has litigated in state and federal courts across the country for clients in financial and banking, manufacturing, construction, not-for-profit, real estate, retail, hospitality and trucking, has represented clients before various administrative bodies, and has defended against government investigations. He presents frequently on emerging labor and employment developments, including “When Federal Priorities Shift: Navigating Employment Law in New York” at a Phillips Lytle Advance U CLE in January 2026, “The Robots Are Recruiting: HR in the Age of AI” at the 2026 SHRM New York State Conference, and recurring Labor and Employment Legal Updates for the Buffalo Niagara Human Resources Association.

SESSION 1 – Auditing and Rebuilding Restrictive Covenant Agreements in 2026 | 12:00pm – 1:00pm

Attorneys will develop a practical process for auditing existing restrictive-covenant agreements across multiple states and identifying provisions that require revision, replacement, or closer scrutiny under the evolving legal landscape. The session will address the impact of 2026 state legislation and changing enforcement standards, including employee compensation and income thresholds that may affect enforceability. It will also examine strategies for drafting reasonable geographic, temporal, and activity-based limitations, using choice-of-law and forum-selection provisions without creating additional enforcement challenges, and replacing vulnerable noncompete provisions with narrower confidentiality, non-solicitation, and trade-secret protections.

BREAK | 1:00pm – 1:10pm

SESSION 2 – Litigating Non-Solicits, Injunctions, and Overbroad Covenants | 1:10pm – 2:10pm

Attorneys will examine the practical litigation decisions that arise when an employee departs and an employer seeks immediate enforcement of non-solicitation provisions and related protections. The session will address how to establish customer, employee, and prospective-client solicitation through disputed facts and available evidence, build the record needed for temporary restraining orders and preliminary injunctions, and distinguish legitimate protection of customer relationships from impermissible restraints on competition. It will also explore overbreadth, blue-penciling, severability, and judicial modification of restrictive covenants, along with choice-of-law disputes and litigation strategies involving overlapping trade-secret, confidentiality, and business-tort claims.