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Massachusetts Non-Solicitation Agreement

A Massachusetts non-solicitation agreement is made between an employer and employee to establish rules around soliciting clients, customers, contractors, and fellow employees after the employee has left the company. The agreement can be included in an employment contract or severance agreement.
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Is It Legally Enforceable in Massachusetts? 

Yes — but only if they observe the following limitations:[1]

  • The employee must receive at least 10 days to review the agreement and seek legal counsel before signing.
  • The term set in the agreement can be no more than 12 months, or two years if the employee has a prior history of related misconduct.
  • The agreement can only apply to the types of services and geographic regions that the employee served in the two years prior to the end of their employment.

Non-solicitation agreements are always unenforceable against the following types of workers in Massachusetts:

  • Any employee exempt under the Fair Labor Standards Act.[2]
  • Broadcast industry employees.[3]
  • Employees laid off or terminated without cause.[2]
  • Employees under the age of 18.[2]
  • Nurses.[4]
  • Physicians.[5]
  • Social workers.[6]
  • Student interns.[2]

Types of Solicitation to Prohibit

Provided that the terms of the agreement adhere to Massachusetts statutes, a non-solicitation covenant can prohibit an employee from associating with the employer’s:

  • Former or current clients/customers
  • Former or current employees
  • Independent contractors
  • Suppliers and other business associates

What to Include

What should you include in a non-solicitation agreement.

1. Time Restraint

Under state law, a non-solicitation covenant can bind an individual to its terms for a year or less if they have no record of misconduct. The exact start and end date of the agreement should be specified.

2. Geographical Restraint

This states the geographical region where the individual is prohibited from engaging in the named activities. This region must be an area where the individual worked within the last two years of their employment.

3. Specific Action

This section specifies the exact activities that the individual is prohibited from engaging in within the timeframe and geographical limit.

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