Popular and trade press reports indicate that Governor Patrick is supporting legislation that will ban noncompetition agreements under Massachusetts law. The theory is that noncomps deter mobility, that mobility is good as it fosters competition in the tech sector, and Massachusetts wants to remain a tech hotbed. (Noncomps have been verboten in California, in most instances, for a long time.)
The issue arises as Massachusetts considers adopting a beefed-up trade secret protection law. As traditional noncomps often were premised on preventing abuse of trade secrets, the ban on noncomps in light of increased trade secret protection by statute is a logical extension. Presumably noncomps would still survive if incident to the sale of a business or if the employer is paying the former employee not to work.
This change is long-overdue. Enforcing noncomps in Mass courts has become difficult and unpredictable, as well as expensive. Noncomps here go back literally to horse and buggy days, when dairies tried to prevent drivers from going to the competition with knowledge of the milk route and how many bottles of sweet cream Mrs. Murphy liked to take on Thursdays. But one result will be that employers will have to review their methods of protecting intellectual property; it is better to prevent leaks at the source than to rely on a strenghtened statute after the fact.