Well, it finally happened. After a nearly decade-long battle, MA has enacted legislation which limits the use, scope and enforceability of non-competition agreements. The new law will go into effective on October 1, 2018, meaning employers have a short window to start preparing now to protect their business interests moving forward as it relates to restricting its (future) former service providers from entering into or starting competing businesses. So if you have founded a started or are planning on doing so and intend on including a non-compete provision for the co-founding team, new hires or engaged consultants, keep reading…..
Starting with the least “headliner” of the headliners: the new law imposes a strict 1 year post-termination time limit on non-competition agreements with any longer period being considered invalid and unenforceable. As pointed out by the tech/VC community, including the NVCA, this does little by way of changing the status quo as the strict nature of this temporal limit is already aligned with the Massachusetts courts’ current approach as well as most tech companies in this region.
But here is where the novelty starts to heat up: The new law requires that the non-compete must be supported by continued payment of at least 50% of base salary during the restricted period or “other mutually-agreed upon consideration.” This is a monumental deviation from the status quo and a requirement which is at the core of the state’s attempt to put a quantifiable $ price on restricting continued innovation and competition in the marketplace.
And then there is this: the new law provides that non-competes cannot be enforced against an employee who is terminated without cause if it is entered into other than in connection with employment termination. This blew my socks off as it is almost always the case (outside egregious circumstances) that employment lawyers advise their clients to terminate high ranking employees without cause or otherwise open your company up to litigation. So now a company may find themselves in the difficult position of deciding whether to fire without cause (and risk an existing non-compete from not being enforceable) or fire with cause (and risk finding yourself in a lawsuit).
And just in case you thought you could rely on your old form non-compete or procedures for on-boarding a new employee: You were wrong. The employer must now comply with new procedural rules in connection with signing a non-compete. Specifically, if signed before the commencement of employment, the agreement containing the non-compete must have been provided to the employee either before a formal offer of employment is made or 10 business days before the commencement of the employee's employment, whichever comes first.
So where does this leave you, employer? Undoubtedly in a less powerful position when instituting and enforcing non-competes, which is a big win for employees and innovation within this state. As we await for things to unfold in practice and through the courts, at a minimum, employers need to take the time to revisit their form on-boarding materials/procedures with their attorney to ensure compliance with the new law. Otherwise, risk looking like a dinosaur….perhaps with a new competitor!