Non-Compete and Non-Solicit Agreements for Employees in Fall River, New Bedford, Pittsfield, Worcester, Springfield, Lowell and the Cape

Steffans Legal has represented employees and employers in non-compete and non-solicit agreements for over 14 years.  During that time, we've learned that the same types of issues arise in these disputes.   Those issues are listed and described below. Have questions?  Contact us today to set up a free consultation.  You can do that by clicking on the "Contact Us" button to the right of this screen.  

TEN most common issues arising out of disputes regarding non-compete and non-solicit agreements impacting employees and employers in New Bedford, lowell, worcester, springfield, pittsfield, adams, and the cape. 

Issue 1:  What Does the Agreement Say?  All disputes regarding non-solicit / non-compete agreements require a careful consideration of the actual language in the document that contains the restrictions.  That's the first place to start when evaluating these types of disputes.  What does the document actually say?  The actual language is the most powerful type of evidence in these types of claims and will govern the entire dispute, as well as its outcome. 

Issue 2:  Does the Agreement Lack Consideration?  These types of agreements are only enforceable if they are part of a bargain between the employer and the employee.  Usually, in Massachusetts, this means they have to be agreed to by the employee at the time he or she was hired.  These agreements may be unenforceable when they are forced upon employees during the course of their employment, unless those employees are provided with some additional benefit as part of the agreement.   

Issue 3:  Did You Actually Solicit?   Non-solicit agreements are different than non-competes.  Employees bound by non-solicit agreements can work for a competitor, but they can't solicit customers of their former employer.  In these types of disputes, the argument typically centers on what does and does not constitute 'solicitation.'  It probably isn't solicitation if the customer initiates the contact.  It may not be solicitation to notify customers of your departure and of your new contact information, but it probably is to ask for their business as part of that notification.  

Issue 4:  Are the Restrictions Too Broad in Terms of Geography?  Non-competes are meant to protect unfair competition.  Unfair competition is unlikely to occur if the employee competes with his former employer in a different geographic region.  For example, say you worked as a salesman for a machine manufacturing company and that you focused your sales efforts in Massachusetts.  A non-compete that prevented you from performing those types of services for an employer in California is probably too broad in terms of geographic scope and likely unenforceable.  One that prevents you from performing those services for a competitor in Massachusetts is probably reasonable in terms of geographic scope.   

Issue 5:  Are the Restrictions Too Broad in Terms of Time? Courts like people to be able to work.  As a result, they don't like non-competes that are too long in terms of time.  Two years is typically enforceable, assuming the agreement is otherwise reasonable.  But two years isn't always reasonable, especially when the employee worked for a period shorter than that.  More than 2 years?  Tough to enforce.  

Issue 6:  Are the Restrictions Designed to Protect Legitimate Business Interests?  Non-competes and non-solicits are only enforceable if they are designed to protect legitimate business interests.  Such legitimate interests include trade secrets, employer goodwill, pricing information, or other types of confidential information.  Protection from ordinary competition is not a legitimate business interest.  In other words, courts will not enforce restrictions that prevent the employee from using her skill and intelligence acquired through general experience and instruction achieved during the course of her employment.  

Issue 7:  Are the Restrictions Voided by Law?  Non-competes don't apply to certain employees by operation of law, including physicians, nurses, social workers, lawyers, and individuals in the broadcasting industry.  Non-competes are likely unenforceable as they relate to these employees no matter what those agreements say.  

Issue 8:  Did the Employee's Job Duties Materially Change?  Non-competes are typically agreed to by employees at the time their employment starts.  Employees agree to enter into these agreements at the time of hire after being told by their employer that they will perform certain duties and have certain responsibilities.  If those duties materially change during the course of employment, the employee's promise isn't enforceable.  That's the case because, technically, when duties materially change, the employee is entering into a new relationship with his employer requiring that a new non-compete be signed.  

Issue 9:  Did the Employer Breach the Agreement First?  Relationships between employers and employees contain promises on both sides.  By entering into a non-solicit or non-compete, an employee has promised to do and not to do certain things.  But that same document contains promises from the employer, and so may other documents, including those regarding compensation.  If the employer fails to uphold its promises, it can't force the employee to uphold his.  

Issue 10:  Misrepresentation at the Time of Formation?  All contracts, including non-competes and non-solicits, are meant to codify an agreement between the parties.  That premise is undercut when employers misrepresent facts to induce the employee to enter into the agreement at issue.  If misrepresentations occurred at the time the agreement was signed, the employee's agreement to a non-compete or non-solicit isn't enforceable.  

At Steffans Legal, we've handled non-compete and non-solicit disputes in all types of industries and on behalf of numerous types of employees and employers.  If you are an employer or employee in Massachusetts, including in Pittsfield, Lowell, Fall River, New Bedford, Worcester, the Cape, or Springfield with questions about non-compete or non-solict agreements, contact us today for a free consultation.