Non-Compete Agreements and Restrictive Covenants
Main office: Marblehead, MA • Representing employees in Massachusetts and New Hampshire
The Deck Is Stacked - But It Doesn’t Have to Be
Mark Whitney has spent decades noticing the same pattern: the deck is stacked disproportionately in favor of employers when it comes to non-compete agreements and other restrictive covenants. Employers have legal teams that draft these agreements. Employees are presented with them at offer or separation, often under time pressure, and told to sign. The result is that many people refrain from seeking advice about or challenging their non-compete even when it is overreaching, unenforceable, or both.
Whitney Law Group exists, in part, to turn those tables. Mark’s years of management-side restrictive covenant experience now work for individuals, evaluating, negotiating, and when necessary challenging non-compete agreements and other restrictive covenants in Massachusetts and New Hampshire courts.
Massachusetts Non-Compete Reform Act - What Changed in 2018
The Massachusetts Non-Compete Reform Act, effective October 1, 2018, significantly changed the rules for non-compete agreements in Massachusetts. Key requirements for agreements signed on or after that date:
Advance notice
The employer must provide the non-compete at least 10 business days before employment begins or before the employee signs an offer letter.
Garden leave pay
The employer must provide garden leave pay of at least 50% of the employee’s highest annualized base salary over the prior two years during the restricted period, or other mutually agreed-upon consideration.
Reasonableness
Restrictions must be no broader than necessary to protect a legitimate business interest in terms of geographic scope, duration, and the type of restricted activity.
Duration cap
Presumptive maximum of 12 months (up to 24 months if the employee breached a fiduciary duty or stole employer property).
Not applicable to
Non-exempt employees (hourly workers subject to overtime), employees under age 18, and employees terminated without cause or laid off.
Agreements that don’t meet these requirements may be void and unenforceable. Many agreements, particularly those carried over from pre-2018 templates, do not comply. Whitney Law Group evaluates compliance as a threshold step in every non-compete engagement.
New Hampshire Non-Compete Law - RSA 275:70
New Hampshire’s non-compete statute (RSA 275:70) imposes a timing requirement that many employers miss: the non-compete must be provided to a prospective employee before an offer of employment is made and accepted, not after. Agreements provided post-acceptance may lack consideration and be unenforceable under NH law regardless of their substantive terms. Whitney Law Group evaluates NH non-compete compliance separately and advises Seacoast clients on which state’s law applies to their agreement.
What We Handle - Non-Competes and Restrictive Covenants
- Pre-signing review and negotiation – evaluating enforceability and negotiating narrower terms before you sign
- Post-signing enforceability analysis under the 2018 MA Reform Act or NH RSA 275:70
- Buyout and carve-out negotiation – structuring a payment or modification that clears the path for a career move
- Cease-and-desist response – drafting an immediate legal response to employer demands
- Emergency injunction defense in Massachusetts and New Hampshire courts
- Non-solicitation agreement review and challenge
- Employer-side non-compete drafting and enforcement (see Employment Law for Companies)
Frequently Asked Questions - Non-Compete Agreements
Q: My employer says my non-compete is enforceable and I need to sign or lose my job. What are my options?
More than most people realize. First, evaluate whether the agreement complies with the 2018 Reform Act: was it provided at least 10 business days in advance? Does it include garden leave pay or equivalent consideration? Is it reasonable in scope and duration? If it doesn’t meet these requirements, it may be void regardless of what it says. Second, even compliant agreements are frequently negotiable, particularly in scope, geography, and duration. Whitney Law Group has negotiated narrower restrictions, carve-outs, and adequate consideration in the majority of non-compete engagements. Call before you sign.
Q: I signed a non-compete years ago. Is it still enforceable?
It depends on whether it was signed before or after October 1, 2018, and whether it was governed by Massachusetts or New Hampshire law. Pre-Reform Act agreements in Massachusetts are subject to the prior common law reasonableness standard, a more flexible framework that courts apply case by case. Post-Reform Act agreements must meet the statutory requirements. In either case, overreaching restrictions, ones that are too broad in geography, duration, or scope, can be challenged or narrowed. Whitney Law Group evaluates the specific agreement, the date signed, and the governing law as threshold questions.
Q: My former employer sent a cease-and-desist letter. How quickly do I need to respond?
Within 24 to 48 hours at most. Cease-and-desist letters in non-compete matters are frequently the prelude to a motion for a temporary restraining order, and courts can grant emergency injunctions prohibiting you from working within days of a filing. Do not respond to the employer or their counsel without speaking to an attorney first. Every communication before you have counsel can be used against you. Call Whitney Law Group the same day you receive any non-compete demand.
Schedule a consulation in Marblehead, MA
Serving Marblehead, MA and the North Shore
Whitney Law Group’s main office is at 11 State Street in Marblehead, MA, the firm’s home since its founding in 2017. We serve clients throughout Essex County and the North Shore, including Swampscott, Salem, Beverly, Peabody, Danvers, Gloucester, Newburyport, and Marblehead. Virtual consultations available statewide.
