Non-Competition Agreements

Opportunity knocks. You find yourself at the doorstep of a lucrative career move. The chance to turn the corner has arrived. Your hard work has paid off, but will you be able to reap the rewards? It all depends. One question comes to mind: Did you sign a non-compete agreement? As Boston non-compete lawyers, we are adept at analyzing these agreements and evaluating their enforceability.

Whereas a patent awards the holder a monopoly on a certain product, a non-compete clause grants your employer a temporary monopoly on you. If deemed enforceable, a non-compete may prevent you from earning a living in the industry that you know best. The stakes are high. Your livelihood needs to be protected. Time is of the essence. 

Contrary to what appears to be the popular belief among employees, non-compete agreements are enforceable. Non-compete agreements, however, must be narrowly tailored to protect a legitimate business interest. An employer may also attempt to utilize other restrictive covenants, including a non-solicitation clause, to restrict an employee after his or her employment ends. Preventative measures pay dividends. If your employer requests that you sign an agreement that contains post-employment restrictive covenants, enlist our knowledge to ensure that your interests are safeguarded. Addressing issues today may prevent the need to embark on litigation later.

If a former employer believes that you have violated a non-compete agreement, you will likely receive a “cease-and-desist” letter. This is an opportunity to learn the employer’s position and explain in what ways, both legally and factually, the agreement is unenforceable. In other instances, an employer may rush into court and request a “temporary restraining order” pursuant to Massachusetts Rule of Civil Procedure 65(a). Through this mechanism, the employer requests the court to force the employee to resign from his or her current position, which the court will grant “if it clearly appears that immediate and irreparable injury, loss, or damage will result.”

Unfortunately, the TRO hearing is ex parte, meaning that only the employer is present. If granted, however, a TRO is effective for no more than 10 days. Before the TRO expires, the employer’s next step will likely be to seek a preliminary injunction under MRCP 65(b), in which both parties are present. Of course, the course of litigation can vary case-by-case. There are many potential defenses that can be raised to challenge a non-compete agreement, including ambiguity, “unclean hands,” lack of consideration, overbroad in scope, and the absence of a legitimate business interest by the employer. The best way to address an alleged non-compete violation is to face it head-on, especially when given the opportunity to respond to a “cease-and-desist” letter.

As lawyers concentrating in employment law located in the heart of Boston, we look forward to meeting with you and addressing your non-compete concerns.

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