What Does COVID-19 Mean For My Massachusetts Noncompete Or Nonsolicit Agreement?

Employers are being forced to lay off employees due to the impact of COVID-19/coronavirus. For many employees, this reality may trigger obligations under a noncompete or nonsolicit agreement. General answers to these questions regarding COVID-19/coronavirus, noncompetition agreements, and nonsolicitation agreements are below, but employees facing this reality should consult with an employment attorney as to their specific situation.

I’m A Massachusetts Employee and I’ve Been Laid Off Due To COVID-19/Coronavirus. Is My Noncompete Agreement Enforceable?

Almost certainly not, if you entered into the noncompete after October 1, 2018. As of that date, in Massachusetts, noncompete agreements are not enforceable against employees who have been terminated without cause or laid off. MGL ch. 149 §24L(c).

If your noncompete pre-dates October 1, 2018, the answer is less clear. There are cases that support the argument that an employer cannot enforce a noncompete against an employee it fires without cause or laid off, but that argument is not as strong when the agreement was entered into prior to October 1, 2018. However, for pre-October 2018 agreements, courts are much more likely to remain faithful to the actual language of the agreement when deciding whether it can be enforced when employees are laid off or terminated without cause.

I’m A Massachusetts Employee and I’ve Been Laid Off Due To COVID-19/Coronavirus. Is My Nonsolicit Agreement Enforceable?

That’s primarily going to depend on the language of the agreement. The noncompete law addressed above does not apply to nonsolicitation agreements. As a result, courts are likely to be faithful to the actual language of the agreement when deciding whether it applies under these circumstances. Having said that, I suspect many courts would also take into account the fact that the employee was laid off without cause (not fired for cause) under incredibly extenuating circumstances when determining whether to enforce a nonsolicit agreement.