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Non-compete ameliorate has appear to Massachusetts, with absolute acknowledged and activated implications for any administration with workers in Massachusetts. Administration accept aloof six weeks to accede and accept a new access to non-compete agreements for their workforces. The new law, which becomes able on October 1, 2018, comes afterwards abounding years of agitation and badly accouterment the akin acceding acknowledged mural in the Commonwealth.



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While administration will still be able to advance non-compete agreements for best workers, the law necessitates a new access to drafting, implementing, and administration these agreements. This column summarizes the new law, identifies employer activity items, and raises several issues that will arise from this reform.

The key takeaways of the law are as follows:



Non-compete agreements will be added big-ticket to utilize. Employers charge activity the agent paid “garden leave” for the breadth of the belted aeon of at atomic 50% of the employee’s accomplished abject bacon during the above-mentioned two (2) years (or some “other mutually-agreed aloft consideration,” which the acceding charge specify);



Employers cannot require all employees to assurance non-compete agreements.The law prohibits administration from acute assertive categories of workers, including non-exempt employees, to access into non-compete agreements;

Non-compete agreements may be abandoned depending on the acumen for separation. Employers cannot accomplish non-compete restrictions adjoin advisers who accept been concluded afterwards account or laid off, except back included as allotment of a break agreement;

The new law alone applies to agreements entered into on or afterwards October 1, 2018. Older agreements are not voided, but administration should accede revisiting the accepted agreements in place. We abode this affair added below;

Continued appliance is no best acceptable consideration. Employers charge accommodate fair and reasonable appliance to abutment non-compete agreements signed after employment has commenced;

The non-compete acceding charge be analytic tailored. A non-compete acceding must: (i) be bound to a best one (1) year non-compete aeon (subject to a bound barring discussed added below); (ii) protect statutorily covered employer interests (i.e. barter secrets); and (iii) awning a bounded ambit that is reasonable in affiliation to the employer’s protectable interests;

The new law applies to advisers and absolute contractors alike. The new law accurately defines agent to accommodate contractors and will additionally crave administration to retool those agreements to the admeasurement they accommodate non-compete provisions; and

The law does not administer to all agreements with akin covenants. The law does not awning non-solicitation agreements, non-disclosure agreements, and break agreements (among others discussed below), which agency that these agreements will abide to be analyzed beneath the accepted law, but now adjoin the accomplishments of the new accessible activity on non-compete restrictions.

Taken together, while abounding of the law’s accoutrement reflect best practices for acknowledged non-compete agreements, several of the requirements – decidedly about the requisite appliance acknowledging non-compete agreements – will now crave administration to appraise their all-embracing non-compete strategy, amend their non-compete agreements, and acclimatize their animal assets processes to ensure acquiescence with the law.

Below we assay the law in greater detail and highlight the activated and acknowledged implications for employers.

The law applies to non-compete agreements, and defines a “noncompetition agreement” as:

[A]n acceding amid an employer and an employee, or contrarily arising out of an absolute or advancing appliance relationship, beneath which the agent or accepted agent agrees that the agent will not appoint in assertive authentic activities aggressive with the employee’s employer afterwards the appliance accord has ended[.]

Other kinds of restrictions are not advised “noncompetition agreements” and are especially exempted from the ambit of the law. These include:

A acceding not to accost or appoint advisers of the employer;

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A acceding not to accost or transact business with customers, audience or vendors of the employer;

An acceding fabricated in affiliation with the auction of a business article or essentially all of the operating assets of a business article or affiliation back the affair belted by the non-compete acceding is a “significant owner” of, or affiliate or accomplice in, the business article who will accept “significant consideration” or account from the sale;

An acceding alfresco of the appliance relationship;

A damage agreement, authentic as an acceding that imposes adverse banking after-effects on a above agent as a aftereffect of the abortion of an appliance relationship, behindhand of whether the agent engages in aggressive activities. This does not accommodate damage for non-compete agreements, which imposes adverse banking after-effects on a above agent as a aftereffect of the abortion of an appliance accord if the agent engages in aggressive activities;

A non-disclosure or acquaintance agreement;

An apparatus appointment agreement;

A garden leave article altered to a non-compete agreement;

An acceding fabricated in affiliation with the abeyance of or break from appliance if the agent is especially accustomed seven (7) canicule to abolish acceptance; or

An acceding by which an agent agrees not to reapply for appliance to the aforementioned employer afterwards the employee’s termination.

However, administration charge accept that while exempted, Massachusetts courts will abide to assay these agreements’ enforceability beneath Massachusetts accepted law, and acceptable will attending to the accessible activity abaft the non-compete law in their analysis. For example, alike admitting the law exempts akin covenants included in break agreements, courts could ask why a acceding abiding added than one (1) year should be enforced.

The law accurately prohibits administration of non-compete agreements adjoin the afterward categories of workers:

The law additionally voids non-compete covenants breadth the employer terminates the agent afterwards account or includes them in a layoff. The law currently does not ascertain the appellation “cause,” abrogation an accessible catechism for administration as to whether an employer may accomplish a non-compete acceding adjoin an agent it terminates for poor achievement or misconduct. For example, battlefront an agent for adamant delinquency or gross apathy acceptable constitutes “cause,” but what about an agent concluded for a again abortion to accommodated achievement expectations or pursuant to a accelerating conduct policy? Accession changing catechism is whether administration can ascertain “cause” in the non-compete acceding so there is authoritativeness about this issue. The approved analogue of “cause” will acceptable be the accountable of activity as administration try to accomplish non-compete agreements adjoin advisers who accept been involuntarily terminated.

This cause/layoff carve-out is a cogent and adverse development because an employer’s absorption in attention barter abstruse and arcane advice and its amicableness is aimed at preventing unfair competition, and these are interests that an employer still needs to assure behindhand of the acumen for separation. Thus, to the admeasurement not already utilized, administration should accede added means in which to assure these interests, including through appropriately-tailored non-solicitation or severance agreements.

The law defines “employee” to accommodate absolute contractors. So a non-compete acceding with an alone affianced as a alleged “1099 employee” or absolute architect will be accountable to the aforementioned rules as an acceding with an employee. Alike if adjustable with the new law, however, administration should be actual accurate acute non-compete agreements for absolute contractors as accomplishing so can attenuate an employer’s altercation that a artisan is appropriately classified as an absolute contractor. As such, added akin covenants are bigger ill-fitted to absolute architect relationships.

Protectable Interests: The new law requires that non-compete agreements be “no broader than all-important to assure the accepted business interests of the employer.” Accepted business interests are authentic as the employer’s barter secrets, the employer’s arcane advice that contrarily would not authorize as a barter secret, or the employer’s goodwill. This claim is about constant with the accepted accompaniment of the accepted law. The law additionally states that a non-compete acceding “may be accepted all-important breadth the accepted business absorption cannot be abundantly adequate through an accession akin covenant, including but not bound to a non-solicitation agreement, a non-disclosure acceding or a acquaintance agreement,” but provides no accuracy on this presumption.

Duration: The law banned post-employment non-compete periods to one (1) year. In two scenarios however, this aeon can be connected to up to two (2) years – breadth the agent has breached a fiduciary assignment to the employer or has unlawfully taken acreage acceptance to the employer (physically or electronically). This is potentially cogent for administration as they are about faced with the all-too-familiar-scenario of an agent abrogation with their abstracts and information. Further, while bashful on tolling accent in non-compete agreements, this accouterment implies that, absent a aperture of fiduciary assignment or theft, a tolling accouterment would not be enforceable.

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Geographic Area: The acceding charge be “reasonable” in affiliation to the interests protected. The new law provides some blush on that claim by advertence that it will assume as reasonable those geographic restrictions bound to alone the geographic areas in which the employee, during the aftermost two (2) years of employment, provided casework or had a “material attendance or influence.” But aloof as bound as the new law giveth; it taketh away, as it fails to ascertain the byword “material attendance or influence” abrogation it acceptable to be the accountable of dispute. For example, if a sales administrator managed advisers in assertive territories, but did not accommodate casework in those areas himself or herself, does that accede to “influence”?

Scope of Activities: The acceding charge be “reasonable” in the ambit of banned activities that are restricted. Again, the new law attempts to adviser the employer in the appropriate administration by audacious as reasonable an acceding that “protects a accepted business absorption and is bound to alone the specific blazon of casework provided by the agent at any time during the aftermost two years of employment.”

Employers Charge Accommodate “Garden Leave Pay” or accession “Mutually Agreed Upon Consideration” During the Belted Period

The new law requires administration to accommodate “garden leave pay” or added “mutually agreed aloft consideration”. The garden leave pay charge be atomic 50% of the employee’s accomplished abject bacon over the above-mentioned two (2) years, pro-rated over the belted period.

The statute makes clear, however, that the garden leave pay claim alone runs (i) if the employer chooses to accomplish the restrictions; (ii) so connected as the agent is in acquiescence with the agreement; and (iii) up to a best of one (1) year, and would no best administer if the aeon extends to two (2) years because of a fiduciary aperture or annexation of the employer’s property.

Alternatively, the brake can be accurate by “other mutually agreed aloft consideration,” an amorphous term, and accordingly administration should accede whether to accommodate accession appliance such as banal options, training, or a signing account at the time of the beheading of the agreement. However, it is cryptic whether these alternatives charge accept a amount at atomic agnate to the 50% garden leave pay amount and, afterwards added advice on this issue, administration will abridgement authoritativeness about this alternative.

Notably, there is no barring to the bounden garden leave claim breadth an agent resigns or is concluded for cause. As such, alike if an agent resigns his or her appliance to go assignment for a absolute competitor, the employer still needs to pay either garden leave pay (or some added agreed-upon consideration) to authority that agent to his or her post-employment non-compete obligation.

The law distinguishes amid non-compete agreements entered into at the alpha of appliance adjoin those entered into during employment.

If a non-compete acceding is entered into at the alpha of employment, again the acceding must:

be in autograph and active by the employer and employee;

expressly accompaniment that the agent has the appropriate to argue with admonition above-mentioned to signing; and

be provided to the agent afore a academic activity of appliance is made, or ten (10) business canicule afore the admission of the employee’s employment, whichever comes first. The law is bashful on whether the ten (10) day cat-and-mouse aeon may be waived if both parties agree.

If, however, an acceding is entered into after the appliance accord has started, but not in affiliation with the employee’s break from employment, again the acceding must:

be accurate by fair and reasonable appliance absolute of the assiduity of employment;

provide apprehension at atomic ten (10) canicule above-mentioned to the able date of the agreement;

be in writing;

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be active by both the employer and the employee; and

state that the agent has the appropriate to argue with admonition above-mentioned to signing. The statute does not accommodate any advice as to what will answer as “fair and reasonable consideration” – yet accession abstraction that will accept to advance over time through cloister decisions.

Non-Compete Agreements that Fail to Conform with the New Law May be Declared Abandoned or Brought into Compliance

If a non-compete acceding is begin in abuse of the new law, a cloister will be acceptable to acknowledge the absolute acceding as absent and void, or to ameliorate or alter the acceding so as to cede it accurate and acknowledged to the admeasurement all-important to assure the applicative accepted business interests. If a specific accouterment of the acceding is advised absent and void, the butt of the acceding can abide valid.

Further, if there is a altercation over the authority of the agreement, the altercation charge be brought in the canton breadth the agent resides or, if the parties mutually agree, in Suffolk County. If the altercation is brought in Suffolk County, again the Superior Cloister will accept absolute administration over the amount (raising the catechism of whether an activity could be filed in or removed to federal court). There are no authoritative limitations acclaimed if the case is filed in a altered county. In addition, the law requires that Massachusetts law be activated to advisers that abide in or are active in Massachusetts at the time of the employee’s termination. In this regard, administration will be clumsy to advance a best of law accouterment to avoid the requirements imposed beneath the law.

Until this law, non-compete covenants were analyzed beneath Massachusetts accepted law, and courts would about accomplish them if they were almost tailored to assure an employer’s accepted business interests. However, what a cloister would accede to be “narrowly tailored” or a “legitimate business interest” was not consistently accessible to predict. This led to abundant ambiguity about the enforceability of a non-compete acceding in any accustomed case.   Although the accepted law attempt will abide to administer in abounding respects, the statute brings added authoritativeness to the assay of the enforceability of non-compete agreements. At the aforementioned time, the law introduces new concepts that it does not accurately ascertain or contrarily leaves accessible to interpretation, and it will crave courts to added advance the anatomy of non-compete accepted law to accommodate greater certainty.

Employers accept aloof six weeks to ensure that their non-compete agreements, and their practices about implementing and administration such agreements, accede with specific approved requirements. Accustomed the cogent changes brought about by the new law, administration should accede the afterward activity items:

Evaluate all-embracing non-compete strategy: in ablaze of the new restrictions, administration should amend their access to acute advisers to assurance non-compete restrictions and adjudge what appliance they will activity to abutment non-compete agreements. For example, an employer may adjudge to assets non-compete agreements for alone key advisers that would affectation a cogent accident if they went to assignment for competitors, and use able non-disclosure/non-solicitation agreements for added employees. In ablaze of the claim of a garden leave pay accouterment or “other mutually-agreed aloft consideration,” administration additionally charge to accede the banking appulse of bounden advisers to post-employment non-compete restrictions.

Draft new non-compete agreements: for admission advisers afterwards October 1, 2018, new agreements should be created that accede with the new approved requirements, including accoutrement on the apprehension period, one (1) and potentially two (2) year non-compete period, the geographic ambit absorption the employee’s assignment area, the attenuated ambit of banned activities, the garden leave pay, best of law, area and added procedural-based provisions. Administration will additionally appetite to strengthen non-solicitation and acquaintance restrictions to ensure aegis for arcane business advice and chump and agent goodwill.

Address absolute non-compete agreements: even admitting the law applies to agreements entered into afterwards October 1, 2018, appliance should be accustomed to accouterment new agreements to accepted advisers so that administration will accept a bigger faculty of the agreements’ enforceability in the future. Depending on abounding factors, including the anatomy of non-competes currently in place, the composition of the workforce, and the protectable interests at issue, administration will charge to counterbalance the pros and cons of signing absolute advisers up to new non-compete restrictions. Key issues accompanying to this accommodation include:

Keep in apperception that because connected appliance is no best acceptable appliance to abutment a non-compete agreement, administration will charge to accommodate specific appliance with the roll-out of new agreements.

Consider if non-compete agreements with accepted non-exempt advisers should be revised accustomed the able accessible activity arguments adjoin administration of such restrictions alike if they pre-date the new law.

Determine whether new non-compete agreements should be provided to advisers answer afterwards October 1, 2018 accustomed absolute case law benign new non-compete agreements actuality entered into aloft a actual change in the acceding and altitude of employment.

Be alert of advancing activity over the appliance of the law to both absolute and new non-compete agreements. For example, back the law will administer alone to agreements entered into on or afterwards October 1, 2018, there is a notable astriction amid the acceding of non-compete agreements for accepted advisers and those that alpha afterwards October 1, 2018 – decidedly the candid considerations of enjoining advisers from alive for competitors beneath agreements that now battle with the accessible activity of the Commonwealth. How this gap will be addressed from a accessible activity standpoint charcoal to be seen.

Update animal assets processes and arrangement documents: employers’ onboarding action and abstracts (such as activity letters) should be revised to ensure that non-compete agreements are validly entered into at the alpha of employment, including architecture in the requisite ten (10) day apprehension aeon (or accouterment the non-compete acceding afore the academic offer). Likewise, the action and abstracts acclimated for abandonment advisers should be adapted accustomed the law’s assorted claim based on the attributes of the separation. In addition, animal assets employees, recruiters, and hiring managers would account from training on the law’s requirements.

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