If a former employee just left for a competitor, you may be counting on the non-compete they signed to protect your business. A signature alone does not make it binding under Massachusetts law, and a small gap in how you drafted or delivered it could mean it will not hold up. Knowing how enforcement works can help you assess your position before spending time and money on it.
What your non-compete must include to be valid
If you had the employee sign at hiring, the agreement must be in writing, signed by both of you, and state their right to consult an attorney first. You must have delivered it by the earlier of a formal offer or ten business days before they started.
Mid-employment signings need separate, fair and reasonable consideration, as well as notice provided at least ten business days before the agreement takes effect. It must also be reasonable: no broader than necessary to protect a legitimate interest, such as trade secrets or customer goodwill.
Which former employees can you not legally bind
You cannot enforce a non-compete if the employee:
- is non-exempt (generally hourly) under the FLSA
- was a student intern in a short-term role
- was terminated without cause or laid off
- was 18 or younger when they signed
If your former employee falls into any of these categories, no amount of careful drafting will make the restriction stick.
Why you may owe garden leave pay
If you want to enforce the restriction, Massachusetts generally requires paying the departing employee throughout the restricted period, typically pegged to roughly half their recent base pay, unless you negotiated a different form of compensation in writing. This cost pushes many owners toward non-solicitation agreements instead, so confirm which type you used.
How recent court rulings could affect your case
In September 2025, a Superior Court refused to enforce a non-compete tied to a parent company’s equity agreements, since the parent, not the actual employer, was the only signatory. In June 2025, the Supreme Judicial Court clarified that forfeiture tied to a non-solicitation agreement is treated differently than forfeiture tied to a true non-compete. Both confirm that courts would not overlook technical gaps in your paperwork.
What you should do next
Whether your agreement holds up often comes down to details you might not have considered: who signed it, whether you gave proper notice and whether the employee is exempt. A restriction that looks solid on paper can turn out not to be. You may benefit from having it reviewed by qualified legal counsel before taking further action.