Non-Solicitation Clauses in Massachusetts: Key Distinctions
Massachusetts Distinguishes Non-Solicitation from Non-Compete
Massachusetts enacted the Massachusetts Noncompetition Agreement Act (MNAA) in 2018, which imposed significant restrictions on non-compete agreements. Crucially, the MNAA explicitly excludes non-solicitation agreements from its coverage. This means non-solicitation clauses in Massachusetts are governed by common law rather than the stricter statutory requirements that apply to non-competes.
What This Means for Employees
Because non-solicitation clauses are not covered by the MNAA:
- There is no garden leave or other consideration requirement as there is for non-competes
- The clause does not need to be limited to 12 months as non-competes must be
- Employers do not need to provide the agreement by the earlier of a formal offer or 10 business days before start as required for non-competes
- However, courts still apply traditional common law reasonableness standards
Common Law Factors Courts Apply
- Legitimate business interest: Customer goodwill, trade secrets, or confidential business information
- Reasonable scope: Limited to customers with whom the employee had a direct relationship
- Reasonable duration: One to two years is generally upheld, though some courts have enforced longer periods
- No greater than necessary: The restriction must be the minimum needed to protect the employer's interest
- Consonant with public interest: The clause cannot harm the public
Red Flags
- A clause labeled "non-solicitation" that effectively functions as a non-compete (courts look at substance, not labels)
- Restrictions covering customers you never interacted with
- Duration significantly exceeding two years without clear justification
- Overly broad definition of solicitation that includes passive acceptance of business
When to Consult a Lawyer
Consider consulting a Massachusetts employment attorney if your employer characterizes a broad restriction as a "non-solicitation" to avoid MNAA requirements, if you are transitioning between companies in the same industry, or if a former employer is threatening enforcement.
This article is for informational purposes only and does not constitute legal advice. Consult a licensed attorney for guidance specific to your situation.