Massachusetts Noncompete Agreement: What's Included and Enforceability

Quick Facts — Noncompete Agreement Lawyers (Massachusetts)

Is a Non-Compete Agreement Enforceable in Massachusetts?

Yes. Non-compete agreements are enforceable in Massachusetts; however, the agreement must meet several strict requirements. A new law governing non-compete agreements, called the Massachusetts Non-Compete Agreement Act was enacted in 2018 that provided additional protections to workers and increased restrictions on occupations and employee status.

For a non-compete agreement to be enforceable in Massachusetts, it must meet the following requirements:

  • Legitimate purpose. The agreement must be used to protect and employer’s legitimate business interests which can include trade secrets, confidential information, or goodwill.
  • Specific scope. A non-compete agreement can only restrict employees from specific activities that the employee participated in while employed.
  • Geographic area. The geographic boundaries of the non-compete must be reasonable and cannot extend further than where the employee provided services during the past two years of employment.
  • Right to counsel. The agreement must include in writing that the employee has the right to consult legal counsel before signing.
  • 10-day rule. A non-compete agreement must be signed within 10 business days of beginning employment.

In addition to these requirements, the new non-compete Act also requires that employers pay employees 50% of their annual salary during the non-compete period. This is called a garden leave clause.

How Long Does a Massachusetts Non-Compete Agreement Last?

The maximum duration for a Massachusetts non-compete agreement is set by state statutes and is 12 months. The only exception to this law is if the employee has unlawfully taken property from the employer. In this case, the agreement can last up to two years.

Is the New Massachusetts Non-Compete Law Retroactive?

No. The Massachusetts Non-Compete Agreement Act is not retroactive and will not effect agreements that were signed prior to 2018.

Any agreements signed after the Act was passed will be subject to these new changes in law:

  • Non-competes cannot be enforced when a worker is laid off or terminated without cause.
  • Implementation of the garden leave clause
  • Required notice to the employee before the agreement is signed.
  • Requiring that the business interests protected by the agreement are specifically named.

How Do You Get Around a Non-Compete Agreement in Massachusetts?

In Massachusetts, non-compete agreements are often interpreted in favor of the employee because courts do not want to deprive a person the right to earn a living and support themselves. For this reason, there are several ways that an employee can get around or terminate a non-compete agreement.

  1. Contractual defenses. A non-compete agreement is a contract and must adhere to all laws that govern contracts. Contracts must contain an offer, acceptance, and consideration. In addition, contracts must be signed voluntarily and be free from fraud and mistakes. Any defenses that are available for contract enforcement also apply to non-compete agreements.
  2. Consideration. Non-compete agreements must include consideration. In Massachusetts, continued employment does not constitute adequate consideration for a non-compete. Courts require a material change in the employee’s compensation or position to meet the requirement of consideration.
  3. Blue penciling. Massachusetts allows the practice of blue penciling. This means a court can edit or modify an overly broad or unreasonable non-compete to make it enforceable. While this does not allow an employee to get out of a non-compete, it will allow a court to change the terms to be more in favor of the employee’s interests.

What Voids a Massachusetts Non-Compete Agreement?

A non-compete agreement in Massachusetts is void if it does not meet the procedural requirements to be a valid contract. These requirements include:

  • The non-compete agreement must be in writing.
  • It must be signed by the employer and the employee.
  • The agreement must expressly state that the employee has the right to consult with an attorney before signing the contract.

If the non-compete is missing any of these elements, it will be void.

Frequently Asked Questions

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Keidi S. Carrington brings a wealth of legal knowledge and business experience in the financial services area with a particular focus on investment management. She is a former securities examiner at the United States Securities & Exchange Commission (SEC) and Associate Counsel at State Street Bank & Trust and has consulted for various investment houses and private investment entities. Her work has included developing a mutual fund that invested in equity securities of listed real estate investment trusts (REITs) and other listed real estate companies; establishing private equity and hedge funds that help clients raise capital by preparing offering materials, negotiating with prospective investors, preparing partnership and LLC operating agreements and advising on and documenting management arrangements; advising on the establishment of Initial Coin Offerings (ICOs/Token Offerings) and counseling SEC registered and state investment advisers regarding organizational structure and compliance. Ms. Carrington is a graduate of Johns Hopkins University with a B.A. in International Relations. She earned her Juris Doctorate from New England Law | Boston and her LL.M. in Banking and Financial Law from Boston University School of Law. She is admitted to practice in Massachusetts and New York. Currently, her practice focuses on assisting investors, start-ups, small and mid-size businesses with their legal needs in the areas of corporate and securities law.

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Asked on Jul 11, 2023

Noncompete agreement termination options?

I recently left my job after signing a Noncompete Agreement. I am looking for a new job, but I am concerned about the restrictions in the Noncompete Agreement and how it might affect my ability to find a new job. I am looking for advice on my options for terminating or modifying the Noncompete Agreement so that I can find a new job without having to worry about any potential legal repercussions.

Merry K.

Answered Aug 15, 2023

I am a WA State employment attorney. If you didn’t receive anything in return for signing the non-compete, it may be relatively easy to get out of it. If, however, you signed in return for something, such as a severance package, it will be challenging to get out of the agreement. However, many non-compete agreements are written overly broadly and may not be enforceable under the laws of WA and other states. You may want to consult with a WA State employment attorney for a review of the documents and law(s) of the state(s) where you may want to work or set up a business. (A WA State attorney can only provide legal advice in WA, but can help you find applicable law/case decisions for other states but without providing anything beyond information, much like a law librarian).

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Asked on Jul 12, 2023

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I am a business owner who has recently acquired a new partner. We are in the process of drafting a Noncompete Agreement to ensure that neither of us will compete against each other in the same market. We are looking for advice on what should be included in the agreement and how it should be enforced.

Daniel D.

Answered Aug 4, 2023

The one thing to make sure with noncompete agreements is that it is reasonable in terms of duration and the area you cannot compete in. Courts use a reasonableness test to determine whether a noncompete agreement is valid. If provisions are deemed to be unreasonable and fail the test, they could be altered or struck out of the agreement.

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Asked on Mar 31, 2021

Can I get out of my noncompete agreement?

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Donya G.

Answered Mar 31, 2021

You may be able to be released from a non compete. You would have to review the language in the non compete to see the expiration. DISCLAIMER The answers to these questions do not constitute legal advice and does not create an attorney-client relationship with the attorney and anyone who reviews these responses.

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Asked on Jul 13, 2023

Can a noncompete agreement be waived?

I am a small business owner in the retail industry and I am looking to hire a new employee. The employee has a noncompete agreement with their previous employer that I am concerned about. I want to know if it's possible for the agreement to be waived so that I can be sure I'm making the right decision in hiring this employee.

Thomas L.

Answered Jul 21, 2023

Yes, the parties to contracts can always agree to amendments and waivers. However, the former employer may have no interest in waiving the contract in this particular situation.

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Asked on Jul 4, 2023

How does a noncompete agreement work?

I am an employee at a small business and I have recently been asked to sign a noncompete agreement. I am not sure how these agreements work and what rights I have as an employee. I am also concerned about the restrictions that could be placed on me if I sign the agreement. I want to make sure I understand the implications of signing the agreement before I do so.

Nancy B.

Answered Aug 4, 2023

In its simplest terms, a noncompete agreement in an employment context is an agreement that says you will not compete with your former employer if you ever stop working for them. It typically forbids things like: + Working for a competitor + Starting a company that sells the same services/products as your employer + Recruiting employees from your current employer after you have left that employment. One thought is that this could be requested shortly before letting an employee go just to protect the company from competition but I hope that is not the case here as it seems like an unfair use of the noncompete agreement ability in Georgia. The issues are usually the geographical scope (for example within 15 miles of Dalton, Georgia), the time period (one or two years is usually sufficient and courts do not favor long noncompete agreements), and the consideration (such as a new job - which is not applicable in your case, or more compensation). Regards, Nancy A. Burnett

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