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The Argument

Should the state adopt legislation banning non-compete agreements?



State senator Will Brownsberger, a Belmont Democrat

Over the past couple of decades, “non-competition” clauses have become all too common in the fine print that employees sign on the first day of work.

These clauses say, in practical effect: If you ever leave our employ, you will never work for anyone else who might think about trying to be in a business we might think about trying to be in.

Of course, all non-competition clauses are time-limited and defined more narrowly, but one year is forever for someone with debts to pay and, if one has learned a trade, it’s hard to make a living outside that trade.


We’ve heard dozens and dozens of stories of overreaching and harmful language. We’ve even heard testimony from a teenage camp counselor who had to sign a non-competition clause to work in a camp. I am convinced that the situation has gotten out of hand and that we need to stop employers from abusing the court system by trying to enforce this kind of fine print.

While many of the personal stories we have heard are very moving, there are broader issues at stake. In technology fields, non-competition clauses make it harder for young engineers with good ideas to form new ventures and develop their ideas. Some business leaders believe that California’s refusal to enforce non-competition agreements is part of what has made Silicon Valley more successful than Route 128, especially in the software field.

If employees are chained to their employer as long as they want to work in their field, the employer doesn’t need to pay them as much. This may also be part of what distinguishes Silicon Valley: More of the people involved in successful businesses get wealthy. As a result, they are more able to accept the risks and income deferral involved in creating new ventures.


Our legislation to end court support for non-compete agreements respects existing agreements and also fully preserves employers’ rights to protect their intellectual property through other legal means.

You can read more on banning non-competes under the economic development category at willbrownsberger.com.



John R. Regan, executive vice president of government affairs for Associated Industries of Massachusetts, a statewide employer association with a regional office in Marlborough.

The 4,500 member employers of Associated Industries of Massachusetts strongly oppose legislative proposals to ban or limit the use of non-compete agreements in the Commonwealth. The proposed ban seeks to remedy an issue that does not exist.

A survey conducted by AIM last year found that Massachusetts employers consider the protection of intellectual property and the retention of non-compete agreements to be a defining factor in their investment decisions here.

These companies range from small family businesses to multinational corporations. They represent every segment of the Massachusetts economy: manufacturing, biopharmaceutical and life sciences, medical devices, finance, retail, marketing, publishing, construction, energy, professional services, transportation, and health care.

The non-compete issue is really about choice for both individuals and employers, who should be free to negotiate contracts of mutual benefit as long as employees are a part of the process.

Employees in Massachusetts already enjoy legal protection against overly restrictive non-compete agreements. Enforcement of agreements occurs only when they are narrowly tailored to protect legitimate business interests; limited in time, geography, and scope; consonant with public policy; and the harm to the employer from non-enforcement outweighs the harm to the employee.


Non-competes may not be used to curtail ordinary, fair competition or to prevent employees from using their general skills. Massachusetts has a long history of case law that strikes the right balance between employee freedom of mobility and financial incentives with employer interests in protecting intellectual property, trade secrets, confidential information, and goodwill.

Massachusetts is an economy fueled by research, development, and innovation. The state ranks among the highest in the US for patent creation and venture capital-investment. Massachusetts is the global center of biotechnology research and often ranks higher than California on the Kauffman Foundation’s “economic dynamism” measure.

Even supporters of the non-compete ban acknowledge that such an action would unleash a wave of protracted legal action, including litigation. Contrast that with the fact that most non-compete situations now are resolved quickly without litigation, usually based on assurances from the new employer about what the new employee is doing. Hundreds, if not thousands, of non-competes expire per their own terms.

(As told to Globe Correspondent John Laidler. He can be reached at laidler@globe.com)