Non Compete Defenses Under Massachusetts Law

Non Compete Defenses: Maximizing Your Career Freedom and Flexibility

If you're contemplating a career change while bound by a non-compete agreement, facing legal threats from your former employer, or simply curious about the enforceability of your agreement, there are several avenues you can explore. These options can render a non-compete agreement unenforceable or limit its scope, allowing you more freedom in your professional choices.

Non-Compliance with Massachusetts Non-Compete Law

New Rules (After October 1, 2018): For agreements signed on or after October 1, 2018, Massachusetts law imposes specific requirements.
- Employers must offer you ample time to review the agreement and recommend seeking legal counsel before signing.
- They must also agree to compensate you with half of your salary during the non-compete period.
Protection Against Layoffs: Under this law, if you are laid off or terminated without cause, your employer cannot enforce the agreement.

Lack of a Legitimate Employer Interest

Understanding Legitimate Interests: Non-compete agreements must safeguard the employer's "legitimate" business interests. These generally include protecting trade secrets, confidential information, or the employer's goodwill with its customers.
Your Defense: If your job doesn't involve access to confidential data or direct customer interactions, you may have a strong defense against enforcement.

Overbroad Restrictions

Reasonable Boundaries: Non-compete agreements must have reasonable restrictions regarding duration and geographic scope.
Legal Limit (Under New Law): According to the new Massachusetts law, any agreement exceeding one year is considered unreasonable. A court might enforce a longer restriction in an older agreement, depending on the circumstances.
Blue Penciling: Courts can modify overly broad terms through "blue penciling" while still enforcing the core agreement.

Changes in Employment

Material Changes Matter: Significant alterations in job responsibilities, compensation, or conditions after signing can affect the enforceability of non-compete agreements.
Consider the Impact: The extent of this defense depends on the significance of the changes and how they impact the employer's interests.

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Lack of Consideration or Benefit for the Non Compete

Understanding "Consideration:" In legal terms, "consideration" refers to the benefit you receive in exchange for signing any contract, including an employment agreement.
New Law Requirement: The recent law stipulates that you must receive a fair and reasonable benefit in exchange for agreeing not to compete.
Old Law Rules: If you signed your non compete after starting employment and weren't paid anything additional for signing, you may still be able to argue lack of consideration.

Employer's Breach of Employment Terms

Effect of Breach: Breaches of material terms in an employment agreement, such as unpaid wages or commissions, can invalidate non-compete agreements.
Common Scenario: This often arises in commission-based sales roles and wage disputes.

Independent Contractor Status

Unique Challenge: Independent contractors have additional grounds to challenge non-compete agreements. This is because (i) in order to be lawfully classified as an independen contractor you have to be in the business of providing services to others; and (ii) if your classification was improper, you have a separate claim against your employer that could be used to reach a resolution concerning the non compete.

Meet Our Employment and Non Compete Lawyers

Emily Smith-Lee is the owner and founder of slnlaw. She is a 1996 graduate of Boston College Law School. She was previously a partner at the Boston office of a large international firm, where she worked for thirteen years before starting the firm that became slnlaw in 2009. She has been recognized as Massachusetts Superlawyer each year since 2013, and in 2018 earned recognition as one of Massachusetts Lawyers Weekly's Lawyers of the Year. She has written a book on employment law: Rules of the Road, What You Need to Know About Employment Laws in Massachusetts, been interviewed by the Massachusetts Superlawyers magazine about non compete agreements, and written an op-ed in the New York Times about the dangers of non competes. Along with the rest of the slnlaw team, she has helped hundreds of clients navigate, negotiate, or defend against their non compete agreements.

Rebecca Rogers: Rebecca is a 2006 graduate of Boston College Law School, and has worked with slnlaw since 2013. She previously worked as an intellectual property litigation attorney for Fish & Richardson in Boston, Massachusetts, and clerked for the Massachusetts Supreme Judicial Court. Rebecca has helped many clients understand and evaluate their non compete agreements and develop strategies for defending against non compete enforcement and negotiating resolution.

Jenna Ordway: Jenna is a 2013 graduate of Quinnipiac Law School, and also earned an LLM in Taxation from Boston University in 2015. She has been affiliated with slnlaw since 2011, first as a law clerk and then as an attorney. Jenna has been recognized since 2019 as a "Rising Star" by Massachusetts Superlawyers. Jenna works with employers to develop reasonable and enforceable employee agreements, including non competes. She has also helped employees understand and evaluate their non compete agreements and develop strategies for defending against non compete enforcement and negotiating resolution.

Elijah Bresley: Eli is a 2014 graduate of Seton Hall Law school, and has worked with slnlaw since 2020. He previously worked for a boutique employment law firm outside of Boston, and then for the Labor and Employment department of a large Boston firm. He also spent a year clerking for the judges of the Superior Court in Hartford, Connecticut. Eli has helped clients both evaluate and negotiate their non compete agreements, and defended non compete claims in state and federal courts.

How We Can Help

Our experienced legal team is here to provide you with expert guidance and representation, helping you navigate the complexities of non-compete agreements, assess their enforceability, and strategically protect your career interests. You can use the button below to schedule a call back from a member of our team, or give us a call at 781-784-2322.

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