Signing a Non Compete After Employment
Non Compete Signed After Starting Employment: Know Your RightsTypically, non-compete agreements are presented to new employees as part of the onboarding process. However, there are instances where you might be asked to sign such an agreement after you've already started your job. This situation can arise due to an employer's oversight during your initial onboarding, or it might be a result of a new company policy introduced after you've been with the company for some time.
Prior to October 1, 2018, Massachusetts law provided mixed guidance on whether additional compensation or benefits were required for post-employment non-compete agreements to be enforceable. With the introduction of the new Massachusetts law, if you are asked to sign a non-compete agreement after commencing employment, you must receive "fair and reasonable consideration independent from the continuation of employment" for the agreement to be legally binding. Here are key considerations if you find yourself in a situation where you're asked to sign a non-compete agreement after you've already started working: Non Compete Signed Before October 1, 2018If you signed your non-compete agreement before October 1, 2018, it falls outside the scope of the new Massachusetts statute. Instead, its enforceability will be determined by the preexisting common law established by the courts.
The specifics of your agreement may leave its enforceability uncertain. Before 2018, some courts ruled that a post-employment non-compete could only be enforced if additional benefits were provided, such as extra compensation, a promotion, or other perks. Conversely, other courts held that the mere continuation of employment was sufficient consideration for the non-compete. In the case of a pre-2018 non-compete signed after starting employment, exploring other defenses and limits to enforcement under the common law is advisable. Consulting an employment attorney is a prudent step, especially if you're considering changing jobs to a competitor while bound by such an agreement. Non Compete Signed After October 2018If you signed your non-compete agreement after October 1, 2018, or are currently contemplating signing a post-employment non-compete, your employer must provide "fair and reasonable consideration independent from the continuation of employment" for the agreement to be enforceable.
The exact definition of "fair and reasonable" has not been outlined by the courts or the statute, leaving room for interpretation. A token benefit, such as a new job title or a small one-time bonus, may not meet the threshold for "fair and reasonable" consideration. In contrast, a substantial bonus or salary increase is more likely to meet this standard. The evaluation becomes less clear when considering small annual raises or benefits with uncertain future values, like stock options or profit sharing. Additionally, there are other specific requirements outlined in the new law for those contemplating signing a new agreement post-October 2018. These requirements include the presence of a "garden leave" provision, a restricted period not exceeding 12 months, and providing written notice of a ten-day review period with the recommendation to consult an attorney. For more details on these requirements, you can refer to the Massachusetts Non-Compete Act page. Understanding your rights and the implications of signing or being asked to sign a non-compete agreement after employment has commenced is crucial. Seeking legal counsel and assessing your unique situation are essential steps in making informed decisions about your career and future job opportunities. |
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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
At slnlw, our experienced team of attorneys specializes in navigating the complexities of non-compete agreements in Massachusetts. Whether you've been asked to sign a non-compete after starting your job or are facing enforcement issues, we provide expert legal guidance. We'll assess your situation, explain your rights, and work to protect your interests, ensuring you make informed decisions throughout the process. You can use the button below to schedule a free information call, or call us at (781) 784-2322.
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