Non-Solicitation Agreements in Massachusetts: Enforceability Rules

No federal law specifically governs the enforceability of non-solicitation agreements. The federal framework relies on state law interpretation of contract law and restraints of trade. The National Labor Relations Act (NLRA), 29 U.S.C. § 151 et seq., may implicate non-solicitation agreements if they restrict employees' right to discuss wages, hours, or working conditions with coworkers, but the NLRA does not establish a blanket rule on non-solicitation enforceability.

At the federal level, non-solicitation agreements are treated as contractual covenants not to compete, which courts evaluate under state contract law principles. The Federal Trade Commission (FTC) has not issued rules specifically banning non-solicitation agreements nationwide, though it has proposed rules limiting non-competes. Employers and employees should rely on state law to determine whether a non-solicitation agreement is valid and enforceable.

Massachusetts enforces non-solicitation agreements under common law principles of contract reasonableness, not under a specific statute. The foundational test comes from Cambridge Plating Co. v. Napoli, 408 Mass. 424 (1990), which requires that restrictive covenants, including non-solicitation clauses, satisfy three criteria: (1) they must be reasonable in time, area, and line of business; (2) they must protect a legitimate business interest of the employer; and (3) they must not be unduly burdensome to the employee or injurious to the public.

Massachusetts courts have held that legitimate business interests include trade secrets, confidential business information, customer relationships, and the goodwill of an established business. Courts distinguish between non-solicitation agreements (which restrict solicitation of customers or employees) and non-compete agreements (which restrict working for competitors). Non-solicitation agreements receive slightly more favorable treatment because they are narrower in scope than non-competes.

Duration is critical. A non-solicitation agreement of 1–2 years is presumed reasonable in Massachusetts. Agreements exceeding 2–3 years face significant enforceability challenges. Perpetual non-solicitation clauses are almost always struck down as unreasonable. Geographic scope must also be reasonable; it should be limited to the geographic area where the employer actually conducts business and where the employee worked.

Massachusetts General Laws Chapter 149, Section 24L, enacted in 2018, restricts non-compete agreements by requiring that they be reasonable and protect legitimate business interests, and prohibits them from being enforced against employees earning less than the minimum salary threshold (adjusted annually). However, Section 24L does not explicitly address non-solicitation agreements. Courts generally do not apply Section 24L's stricter requirements to non-solicitation agreements, meaning non-solicitation agreements are evaluated under the older common law reasonableness test.

Non-solicitation duration: 1–2 years is presumed reasonable; 2–3 years faces scrutiny; perpetual restrictions are generally unenforceable.

Non-compete salary threshold under M.G.L. Chapter 149, Section 24L (does not apply to non-solicitation): $75,000 annually (adjusted for inflation; approximately $109,000 as of 2024).

No specified filing deadline for enforcing non-solicitation agreements in court; standard statute of limitations for breach of contract is 6 years under Massachusetts law.

Non-solicitation agreements are subject to several important exceptions and limitations in Massachusetts:

Overbreadth Defense: Employees can challenge non-solicitation agreements as unreasonable restraints of trade if they are overbroad in scope, duration, or geographic area. Massachusetts courts will not enforce provisions that restrict an employee from competing generally in an industry or soliciting customers in areas where the employer has no legitimate presence.

Public Policy Limitation: Massachusetts courts refuse to enforce non-solicitation agreements that unduly restrict an employee's right to work or earn a livelihood. If a non-solicitation clause effectively prevents an employee from working in their profession or trade, it may be deemed contrary to public policy and unenforceable.

NLRA Protection: Employees covered by the National Labor Relations Act may have the right to discuss wages, hours, and working conditions with coworkers, which could conflict with non-solicitation agreements that restrict employee solicitation. The NLRB has indicated that overly broad non-solicitation clauses may violate Section 8(a)(1) of the NLRA.

Legitimate Interest Requirement: The employer must prove that the non-solicitation agreement protects a legitimate business interest. Mere competition alone is not sufficient. The employer must demonstrate protection of trade secrets, confidential information, customer relationships, or goodwill. General non-solicitation agreements with no demonstrated legitimate interest will not be enforced.

Blue Pencil Doctrine: Massachusetts courts have discretion to modify overbroad non-solicitation agreements to make them reasonable and enforceable (blue pencil doctrine), but courts are not required to do so. Some courts will rewrite the terms; others will strike the agreement entirely if found unreasonable.

Employee Mobility: Massachusetts has a strong public policy favoring employee mobility and competition. Courts are skeptical of any restriction that prevents an employee from earning a living or competing fairly. This policy may lead courts to invalidate or narrow non-solicitation agreements more readily than courts in other states.

Step 1: Document the Alleged Violation. Keep detailed records of any communications from the employer or your former coworkers indicating that you violated a non-solicitation agreement. Save copies of the original non-solicitation agreement as signed. Document the dates, names, and specific communications related to the alleged solicitation. Take screenshots of emails, messages, or client lists if relevant. Note the timeline of your departure and when contact with customers or former coworkers occurred. This documentation will be critical if you need to defend yourself or challenge the agreement's enforceability.

Step 2: Review the Non-Solicitation Agreement Carefully. Obtain a complete copy of the agreement you signed. Read it word-for-word and identify the specific restrictions: does it prohibit solicitation of customers, employees, or both? What is the stated duration and geographic scope? Is there a legitimate business interest defined? Determine whether the agreement is overly broad or unreasonable under Massachusetts law. Compare the agreement to the Cambridge Plating test (time, area, line of business, legitimate interest, reasonableness to employee). Identify any defenses, such as overbreadth or lack of legitimate business interest.

Step 3: Seek Legal Counsel Before Taking Action. Consult a Massachusetts employment law attorney before responding to any cease-and-desist letter or employer demand. An attorney can evaluate whether the non-solicitation agreement is enforceable under Massachusetts law and advise you on your rights and risks. If the employer has sued or threatened to sue, you will need immediate legal representation. If you are considering soliciting customers or employees, consult an attorney first to understand your exposure. The cost of a brief consultation is far lower than defending a lawsuit.

Step 4: If Threatened or Sued, Respond Promptly. If the employer sends a cease-and-desist letter, do not ignore it. Respond in writing (through your attorney) within 10–14 days. If the employer files a lawsuit in Massachusetts state court or federal court, you must respond to the complaint within 21 days (Massachusetts Rules of Civil Procedure, Rule 12). Your attorney will file an answer and may raise affirmative defenses such as the non-solicitation agreement being unreasonable, overbroad, or lacking a legitimate business interest. Request that the court declare the agreement unenforceable if appropriate.

Step 5: Prepare for Litigation or Settlement. If the employer pursues enforcement, be prepared for discovery (exchange of documents and interrogatories), depositions, and potentially trial. Gather evidence supporting your position: testimony from customers that they contacted you (not vice versa), evidence that your role did not involve access to the employer's confidential customer information, or evidence that the geographic scope or duration is unreasonable. Most non-solicitation disputes settle before trial. Your attorney can negotiate a settlement that allows you to work or solicit customers without admitting wrongdoing. If you believe the agreement is unenforceable, your attorney may advise you to challenge it in court for a declaration of unenforceability.