Non-Compete Clauses in New Hampshire: 2019 Restrictions

New Hampshire's 2019 Non-Compete Law

New Hampshire enacted RSA 275:70-a in 2019, adding statutory protections for employees regarding non-compete agreements while still permitting them under certain conditions.

Key Statutory Provisions

The law includes these requirements:

• Advance notice: Employers must provide a copy of the non-compete agreement to the employee or prospective employee before or at the time of making the offer of employment. Failure to provide advance notice renders the non-compete unenforceable.
• Low-wage worker ban: Non-competes are void for employees classified as non-exempt under the Fair Labor Standards Act (hourly workers eligible for overtime).
• Existing employees: For current employees asked to sign a non-compete, the employer must provide the agreement at least 10 business days before the effective date.

The Reasonableness Standard

Beyond the statutory requirements, New Hampshire courts continue to apply a common law reasonableness test:

• The restriction must be necessary to protect a legitimate business interest (customer goodwill, trade secrets, confidential information)
• The scope must be reasonable in time and geography
• The restriction must not impose undue hardship on the employee
• The agreement must be supported by adequate consideration

Duration and Geographic Limits

• Duration: New Hampshire courts have upheld restrictions of one to two years as reasonable. Given the state's small geographic size and its position in the broader New England labor market, courts consider how duration interacts with practical employment opportunities.
• Geography: Must reflect the employer's competitive area. Statewide restrictions may be appropriate for employees with statewide responsibilities, but must be proportionate to the actual scope of work.

Consideration

For new employees, the job offer is sufficient. For existing employees, the 10-business-day notice period must be accompanied by adequate consideration, which may include a raise, bonus, or new equity.

Red Flags

• Non-compete not provided at or before the time of the job offer
• Applied to hourly or non-exempt employees
• No 10-day advance notice for existing employees
• Duration exceeding two years
• Geographic scope exceeding the employer's actual market

When to Consult a Lawyer

Consider consulting a New Hampshire attorney if you did not receive advance notice of the non-compete, if you are a non-exempt employee being asked to sign one, or if you are evaluating an existing agreement for enforceability.

This article is for informational purposes only and does not constitute legal advice. Consult a licensed attorney for guidance specific to your situation.