New Proposed Massachusetts Non-Compete Legislation Focuses on Duration of Restrictions

Employment Attorney Bob SheaBy: Bob Shea

Over the past several years legislators in Massachusetts have filed various bills seeking to address perceived employer overreaching in the area of non-competition agreements. According to the legislators, many employers impose non-compete restrictions on employees in circumstances where such restrictions are not appropriate, or impose restrictions that go beyond what might be necessary to protect legitimate business interests (i.e., customer good will, trade secrets and other confidential business information).

Recent bills introduced by Representative (now Senator) Will Brownsberger and Representative Lori Erlich addressed non-compete issues in a fairly comprehensive way, attempting to codify, clarify, and modernize existing common law in Massachusetts. The bills met opposition by some business groups which viewed the bills as trying to place unacceptable limitations on the legitimate use and scope of non-compete restrictions. Although the bills garnered some support, including from employee advocates, the Governor’s office and some journalists, the legislators’ efforts were unsuccessful.

This year, Sen. Brownsberger and Rep. Erlich have presented a bill that focuses only on the duration of non-compete restrictions. The bill, House Bill No. 2221, referred to as “the Noncompetition Agreement Duration Act,” seeks to create a presumption that a non-compete restriction lasting up to six months is reasonable in duration, whereas a non-compete restriction lasting more than six months is presumed unreasonable in duration. The bill provides that a non-compete agreement that is determined by a court to be unreasonable in duration shall be unenforceable.

The bill provides for three exceptions: a non-compete agreement of unreasonable duration will not be unenforceable if (i) the employee has breached a fiduciary duty to the employer, (ii) the employee unlawfully took the employer’s property, or (iii) the employee has received $250,000 in annual taxable compensation from the employer. When one of these exceptions applies, a court could enforce the non-compete agreement for any duration the court determines is appropriate.

We believe the bill will face strong opposition, and its prospects for passage are, at best, uncertain.

If you have questions or want more information on this proposed legislation, you can contact Bob Shea.

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