they have to be limited in geographic scope to where the employee was actually working. Number three, they have to be limited to the kinds of work the employee was actually engaged in.” (The bill defines a reasonable geographic scope as the “area in which the employee provided services or had a material presence or influence.”)
Brownsberger says he’s gotten an earful of feedback since beginning his effort to roll back noncompete agreements, and apparently some of it has stuck. For example, he says he’s now skeptical of the argument that California is a comparative haven for entrepreneurship simply because its courts have held noncompete agreements to be unenforceable. “There’s a little bit of a fiction there,” he says. “What a couple of different attorneys have said is that what happens in California is simply that people rely on other protections. It’s like a balloon between squashed down in one area—it comes up elsewhere, with more aggressive trade-secrets and confidentiality enforcement.”
So far, few people in Massachusetts have spoken out publicly either in support of existing employment law or in opposition to Brownsberger and Ehrlich’s bills. (One exception: Akamai CEO Paul Sagan, who called the argument over non-compete agreements a “red herring” at a June meeting of Governor Patrick’s IT Collaborative. “I’ve seen no data that indicates [noncompete agreements] retard growth,” Sagan said. “Emotional arguments, but no data.” Patrick himself has not taken a definite stance on the issue. “I don’t have a stake in the status quo,” he told Boston Globe columnist Scott Kirsner, who buttonholed him after the meeting.)
But legal experts I’ve spoken with suggest that there are significant forces in the state opposed to any tempering of the law around noncompete agreements, and that these parties are merely biding their time, waiting to see whether Brownsberger and Ehrlich’s efforts gain any real steam on Beacon Hill before they step in.
Brownsberger certainly expects more pushback as hearings on the bill approach. “There will inevitably be people on all sides of the process who feel that we should do more or less than what we’re doing,” he says. “We’re trying to strike a balance and do the best thing for the state as a whole, but I have no doubt whatsoever there will be continued opposition to this bill, and we will continue to listen to that opposition and address concerns.”
Brownsberger will be among the panelists at a Boston Bar Association symposium on noncompete agreements at 4:00 p.m. this Wednesday in Boston. The event is open to the public.
