As reported in Xconomy, the effort to abolish noncompetes in Massachusetts except in sale of business situations has had a significant setback. Rep. William Brownsberger, who introduced a bill to accomplish that goal earlier this year, has now combined forces with Rep. Lori Ehrlich (who had proposed a milder limitation on noncompetes) to introduce a compromise bill that would permit continued enforcement of noncompetes, but with several restrictions. I won’t catalog all of them now, but one interesting feature of the compromise legislation would be to create a "presumption of enforceability" in instances where the employer limits the duration of the agreement to six months and observes certain other limitations.
My initial reaction to this feature is that it might have the opposite effect of that intended by those who are seeking to limit abuses which they believe are inherent in the current common law-based approach. As described in previous posts, the current debate about noncompetes has been spurred by those who believe that enforcement of noncompetes in Massachusetts stifles employee mobility and technological innovation, resulting in a competitive disadvantage versus California, which prohibits noncompetes. However, based on my initial reading of the compromise bill, employers would be provided with an incentive to actually increase the number of situations in which noncompetes are enforceable (or at least presumptively enforceable). This could be more deleterious to employee mobility and innovation than the status quo.