The Massachusetts Legislature has spent the past several years seeking to regulate the use of restrictive covenant agreements in the Commonwealth. Despite repeatedly falling short in that initiative, the 2017 legislative session strongly signaled the Legislature’s enduring interest in this subject by introducing a whopping eight new competing bills.
In an article posted on our website, Erik Winton (Boston), Cliff Atlas (New York City) and Colin Thakkar (Jacksonville) analyze the “garden leave” requirements set forth in three of the bills, pursuant to which employers who choose to enforce post-employment non-compete covenants would be required to continue paying the affected former employees during the restricted time period. Although the Legislature has and continues to receive valuable input from non-compete experts as it works to resolve any issues in the bills, one resource it will not be able to draw from is the experiences of other legislative bodies. That is because Massachusetts would be the first state in the nation to legislatively implement a garden leave requirement, if the garden leave concept ultimately is adopted.
On October 31, 2017, members of our Boston office attended a public hearing organized by the Massachusetts Joint Committee on Labor and Workforce Development to discuss the pending non-compete bills. During the hearing, substantial attention was devoted to the proposed garden leave provisions, including the absence of any other states to have passed such a requirement. While the Committee members dismissed the notion that they would be reluctant to forge a new path in that regard, it is too early to predict whether the path they pursue will lead to the finish line.