Repaving Route 128: How New Legislation in Massachusetts Impacts the Noncompete Debate

Abstract

On October 1, 2018, new law governing the use of employee noncompetition agreements went into effect in the Commonwealth of Massachusetts. The updated rules, a compromise between those seeking to increase worker mobility and those intent on preserving certain intellectual property protections, were the culmination of many years of legislative debate. Before the passage of the new measures, Massachusetts exemplified the type of state that tended to honor employee covenants not to compete. One scholar famously identified Massachusetts’s high enforcement of noncompetes as the primary cause of the Route 128 business district’s relative downfall compared to Silicon Valley, where noncompetition agreements are generally void. Time will tell whether the new noncompete legal regime will help the Route 128 region catch up to Silicon Valley’s explosive growth; in the interim, as the national dispute over the merits of noncompetition agreements rages on, other states will surely look to Massachusetts before choosing whether—and how—to rewrite their employee noncompete laws. This Note examines the recent Massachusetts legislation in the context of the region’s history and the broader national discussion on noncompete laws, arguing that the new rules in Massachusetts set a useful example while leaving several issues—particularly surrounding the garden leave provision and government enforcement—unresolved.