Legal Question in Employment Law in Massachusetts

Re: Non-Compete Agreements

I hope you live and work in California, because I have a much different answer for you. California is a right to work State. Non-compete agreements are contrary to public policy and unenforceable, no matter how the company got you to sign. California Courts simply do not recognize their validity. There is one caution, however. If, as it appears is the case here, your employer is based in another State that recognizes the legitimacy of non-compete contracts, and they learn that you are going to or have gone to a competitor, they may go to a court in that State, and obtain an order restraining you from working for the competitor. If that happens, then California courts must recognize the validity of another State's order. Therefore, you or your new employer must go to court first and have the non-compete clause declared illegal. It may literally be a race to the courthouse. If you are considering leaving, speak with an attorney first, or run it by your prospective employer's counsel.

Re: Non-Compete Agreements

it is not enforcable at all in CA

Re: Non-Compete Agreements

The answer is a typical lawyer's answer -- it depends -- but the short answer is the agreement is most likely enforceable. Because we are an employment at will state, the SJC has said that non-comps presented to an employee after they begin employment are still enforceable even in the absence of some change of circumstance (i.e. a promotion or raise) because you are getting the benefit of continued employment from the company. (They can fire you for any reason or no reason...)

Having said that, non-comps are limited to the legitimate protection of a businesses interests. Still, most of the cases say that protection of a company's good will falls into that category and so an agreement designed to keep you out of the industry can be enforced.

There are often exceptions and loopholes and you should get legal counsel BEFORE making a move if it ever comes to that.

Re: Non-Compete Agreements

When presented with such an agreement in

the future, you should insist that

you discuss the matter with your attorney

before signing it. Pressure by the employer

not to due so could rise to the level of

duress or undue influence and could later

provide a defense to enforcement of the contract

if you were to sign it under pressure.

The interpretation and enforcement of

non-competition agreements is normally a

question of state law. If Massachusetts

State law governs, there are two common

grounds for challenging such agreements:

1) that the non-compete clause applies to

an overly broad geographical area and should

not be enforced, or 2) that the non-compete

clause extends for an unreasonable period of

time not necessary to protect the employers

legitimate interests. Kroeger v. The Stop &

Shop Companies, 13 Mass. App. Ct. 310 (1981).

The circumstances in which you signed the

agreement as you describe them, alone, may not

provide any defense to the enforcement of the

agreement as you received consideration, the

continuation of your employment, for executing

the agreement.

Whether your particular agreement is enforceable,

in whole or in part, would require more information.

Re: Non-Compete Agreements

The agreement may or may not be enforceable, you should always talk to an attorney before signing an agreement that you feel uncomfortable about.

The answer depends on where the agreement is made and enfoced. I can only comment on the Massachusetts consequences, California may be different. In Massachusetts, the court will look to see if the agreement is reasonable in terms of length of time, geographic scope, and in terms of what you are prohibited from doing. For example, an agreement that says you cannot work for the next 100 years, anywhere in the world, at any job -- would not be enforceable. If you contemplate changing jobs, you should have an attorney look at the agreement and the job you are going to, and give you an assessment of the risk that you could be enjoined from doing so. That opinion is not a sure thing, the company may view that your new job violates the agreement, even if a Court may someday say your new job does not violate the agreement. You do not want to have to hire attorneys, and end up losing a new job, if all of that can be avoided.

Tom Workman