Demystifying Non-Solicit Agreements in Massachusetts: Protecting Your Professional Future
Navigating Non-Solicitation Agreements in Your Employment ContractIn the world of employment contracts, non-solicitation agreements have become increasingly common, especially following recent changes in Massachusetts law that have made the enforcement of non-competes more challenging. To navigate this evolving landscape, it's essential to grasp the ins and outs of non-solicitation agreements and their potential implications on your career after leaving a job.
What Exactly is a Non Solicit Agreement?A non-solicitation agreement is a contractual clause that typically prohibits you from actively 'soliciting' either customers or fellow employees, and sometimes even vendors or consultants. The term 'solicit' is the key here – it essentially means asking someone for something. In the context of these agreements, not soliciting customers means refraining from approaching them to do business with your new employer. Similarly, not soliciting employees means not attempting to recruit your former colleagues to join you at your new workplace.
The precise wording of the agreement is crucial. If it merely states that you won't solicit, you might still be free to engage with former customers or employees if they reach out to you after you've left the company. More often, though, a non-solicitation provision will include language that you will not 'directly or indirectly' solicit the company's customers or employees. The interpretation of 'indirectly' can sometimes be a subject of dispute. While asking someone else to solicit on your behalf is clearly "indirect solicitation," whether certain actions, like broadly targeted marketing, fall under this definition can be less clear. Additionally, if you hold a high-level position within your company, you might also have a common law duty of loyalty or fiduciary duty that restricts your ability to solicit employees or customers while still employed. When Does a Non-Solicit Agreement Become a Non-Compete?To address the ambiguity surrounding the term "solicit," some agreements take a broader approach and state that you won't accept business from the employer's customers. In cases where the company is small, with a limited customer base, this may effectively function as a non-compete.
However, many businesses serve a wide range of customers, some of whom you may not even be familiar with as an employee who signs a non-solicitation agreement. Moreover, certain customers, like tech giants Google or Amazon, could be so significant that avoiding any interaction with them in your field may be nearly impossible. In such scenarios, a non-solicit agreement could indeed resemble a non-compete, potentially requiring it to meet the same legal requirements for enforcement. This means it would have to be reasonably necessary to protect a legitimate employer interest, such as safeguarding trade secrets, confidential information, or goodwill. |
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The Impact of New Non-Compete Law on Non-Solicitation Agreements
Since October 2018, Massachusetts employers have been required to provide "garden leave" payments if they intend to enforce a non-compete agreement. Additionally, specific limitations now exist regarding who can be bound by these restrictive covenants. Importantly, the law explicitly excludes non-solicitation agreements from these new requirements.
As a result, it's expected that employers will turn to non-solicitation agreements as a more feasible means to achieve similar goals, possibly drafting them as broadly as possible to limit not only solicitation but also the acceptance of business from a former employer's customers.
Given these developments, seeking legal advice before signing a non-solicit agreement has become crucial. The enforceability of a broadly drafted non-solicitation clause in light of the new law remains uncertain. You might be inadvertently agreeing to more significant post-employment restrictions than you anticipated, and these restrictions could be legally binding.
As a result, it's expected that employers will turn to non-solicitation agreements as a more feasible means to achieve similar goals, possibly drafting them as broadly as possible to limit not only solicitation but also the acceptance of business from a former employer's customers.
Given these developments, seeking legal advice before signing a non-solicit agreement has become crucial. The enforceability of a broadly drafted non-solicitation clause in light of the new law remains uncertain. You might be inadvertently agreeing to more significant post-employment restrictions than you anticipated, and these restrictions could be legally binding.
Key Questions to Ask an Employment Lawyer About Your Non-Solicitation Agreement
Before you put pen to paper on a non-solicitation agreement, it's advisable to have it thoroughly reviewed by a skilled attorney. Here are some essential questions to discuss:
- **How broadly is "solicit" defined in the agreement, and what activities does it likely cover?
- **Is the term "customer" sufficiently defined to only encompass individuals or entities with whom you've conducted business?
- **What are the enforcement mechanisms outlined in the agreement? For instance, does it mandate arbitration, or does it make you responsible for attorneys' fees if the company can prove you breached the agreement?
Meet Our Employment 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. Along with the rest of the slnlaw team, she has helped hundreds of clients navigate, negotiate, or defend against the terms of their employment agreements, including non competes, non solicitation agreements, employment contracts with intellectual property provisions and other restrictive covenants, and executive employment 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, and understand and navigate other employment contracts.
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, non solicitation agreements, executivev employment agreements and incentive agreements. She has also helped employees understand and evaluate their non compete agreements and develop strategies for defending against non compete and non solicitation 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 employment agreements, including non competes, non solicitation agreements, employment contracts with intellectual property provisions and other restrictive covenants, and agreements requiring employee payback of retention bonuses or training expenses. Eli has also defended claims against employees based on employment contracts in state and federal courts.
How We Can Help
Our experienced team can provide expert legal guidance on non-solicitation agreements, ensuring you comprehend their implications and protect your 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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