Bill to End Non-Compete Agreements Filed on Beacon Hill

1/12/09Follow @wroush

Massachusetts Representative Will Brownsberger filed a bill today calling on the state legislature to outlaw the non-compete agreements that prevent many Massachusetts residents who leave their employers from finding work at similar companies.

The brief bill, entitled “An Act to Prohibit Restrictive Employment Covenents,” would amend Section 19 of Chapter 149 of the General Laws of Massachusetts, which deals with general employment provisions. It renders void and unenforceable “any written or oral contract or agreement arising out of an employment relationship that prohibits, impairs, restrains, restricts, or places any condition on, a person’s ability to seek, engage in or accept any type of employment or independent contractor work, for any period of time after an employment relationship has ended.” Violators would be liable for the affected employee’s attorney fees. (We’ve reproduced the full text of the bill on Page 2.)

I first wrote about the pending bill last month. Brownsberger, who represents the 24th Middlesex district, including parts of Belmont, Cambridge, and Arlington, said then that he’s primarily interested in helping service workers such as telephone agents, who often leave their positions only to find that the non-compete clauses in the employment agreements prohibit them from finding comparable positions in their industries. “I’m concerned that these agreements are often entered into by employees who are at a substantial bargaining disadvantage,” Brownsberger said.

But non-compete agreements are also the subject of debate in the entrepreneurial community. Critics such as Bijan Sabet, a general partner at Spark Capital in Boston, have said that they retard innovation and hurt Massachusetts startups relative to their rivals in states like California, where non-compete agreements are illegal.

In a recent blog post, Richard Tibbetts, a co-founder and software architect at Lexington, MA-based StreamBase Systems, called Brownsberger’s proposal “a simple legislative change which will cost the government little and have a big impact on Massachusetts competitiveness.” Tibbetts posted the text of a letter he wrote to his Congressional representative, Sean Garballey, urging him to support Brownsberger’s effort. The letter says in part:

In some cases, potential employees have declined to pursue discussions with me, fearing legal repercussions from their previous employer. In other cases, employees have requested that they not work with certain customers or on certain lines of business, in order to avoid the appearance of impropriety…While these agreements are seldom enforced, their existence and the legal grey areas surrounding them are a drain on our economy. They hurt workers, who are not able to change jobs freely and make use of their skills in the best jobs possible. And they hurt companies, making it harder to recruit the best employees. Removing noncompetes will help everyone in Massachusetts benefit more from our skilled workforce.

According to Tibbett’s post, Massachusetts Senator Patricia Jehlen plans to sponsor a Senate version of Brownsberg’s bill. Other legislators wishing to co-sponsor the anti-non-compete bill have until February 6 to add their names to the bill. The bill is expected to be referred to the House Committee on Labor and Workforce Development, which will likely hold a hearing on the proposal this spring, Brownsberger said last month.

Update, January 16, 2009: New blog posts applauding Brownsberger’s initiative have been published this week by Scott Kirsner of the Boston Globe and Angelo Santinelli of Dakin Management and North Bridge Venture Partners.
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Wade Roush is a contributing editor at Xconomy. Follow @wroush

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  • mike falkoff

    The legislation appears to be aimed at older or poorly drafted non-competition agreements that are not enforceable anyhow. It’s true that most agreements are of this type, over-reaching to some extent, and they do have a chilling effect on ex-employees. But Massachusetts has a well developed body of case law regarding what is a legitimate restraint. So rather than attempt to change the law without knowing what it is, perhaps the situation could be better addressed by requiring employers to hand out a notice that lists the employees basic rights- to practice their occupational skills, as well the obligations – to not disclose confidential or proprietary information of their former employer. Employers often use non-competition agreements simply because it is so difficult to actually determine whether an ex-employee has breached these other obligations.

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  • John

    Hi I am currently in a non-compete situation. I am just a average blue collar worker with good experience in my field, but under the non-compete I can not go to any competitor to work for them unless they are a 100 miles away from my current employer. My question is “Why should I be held back to make my life better when I am not a officer of my current employer?

  • Christian Teubner

    I need some advice as I just started a catering business that does the same thing as the last company I worked for. The issue is that the owner of that company was terrible with people, her employees and especially her clientel. Now her old clients want to go with me because I can give them a higher quality food at a cheaper price and offer more services. If they don’t like her and her way of doing business, that still means I could get sued if I sign a contract with them?

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  • xyz

    where we work [employer is private company] take advantage of Visa status [h1b visa] of employee and the NOn Compete agreement and make all employee to work extra 2- 4 hours a daily and he literally hell at the employee and ask them to work on weekends . Called weekend project if not you wont get bonus or salary wont be hiked .what happens if we join the competation company which we wont mind for less salary instead of we get helling and to put extra hours and stress /health .he has lawyer and treaten employee and employee dont have money to spend on lawyer.
    what do you do this type of employer ?

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