A controversial non-compete bill that was gaining considerable steam in Massachusetts after it advanced out of a House committee last session was quietly dropped from the state’s recently enacted economic development law.
Insiders say it is unclear what will become of the legislation, which would have limited the ability of employers in the Bay State to use non-competes.
“With all the fanfare placed on the bill when it was first filed, I was surprised so little attention was given to the fact it was cut out of the final version,” said Michael L. Rosen, an employment lawyer at Boston’s Foley Hoag. “This would have represented a big change in the way people do business here. You would’ve thought it would get more attention, particularly when it looked like, for a time, that this might become law.”
Rep. William N. Brownsberger initially filed a bill in January 2009 calling for an outright ban on the use of non-competes. He and Rep. Lori Ehrlich subsequently proposed a compromise measure later that year limiting the duration of non-competes to between six months and one year.
The compromise bill also exempted employees with salaries under $75,000 from entering into non-competes and required employers who violate the law to pay the other side’s counsel fees.
Daniel C. Cohn, a bankruptcy lawyer who practices at Murtha Cullina in Boston, said the prospect of new rules played a big role in the bill’s demise.
“Change is scary,” Cohn said. “I think what happened was that you had all these companies who had signed their employees to non-compete agreements who were scared about what the world would look like if those agreements were not enforceable. To me, either having them be unenforceable or at least severely limiting their enforceability is a logical consequence of competing in the marketplace.”
But Boston lawyer John R. Bauer of Robinson & Cole, who represents both employers and employees, said it was more than fear that killed the bill. Those who studied the proposal quickly realized it would create more problems than it was worth, he said.
“The bill had way too many ambiguities in that it would have left us, as lawyers, unable to advise our clients for years as to what the right thing to do was,” Bauer said. “It would have taken a long time for [trial] judges and appellate courts to interpret all of the new phrases and principles in the law.”
In an interview, Brownsberger said several powerful business influences, including the Associated Industries of Massachusetts, exerted considerable pressure to block the measure’s passage.
“There certainly were a lot of vocal members of the business community who expressed their concern with the bill, and that was clearly a factor in what happened,” he said. “That said, I fully intend to bring this back.”
Bradley A. MacDougall, who testified against the bill in his capacity as associate vice president for government affairs at AIM, said his organization intends to raise the same concerns if the bill resurfaces down the road.
“The point we tried to raise was that, regardless of the size of the business, this is just bad policy,” he said. “There was a big concern among our constituents about being able to protect trade secrets, and that message seemed to resonate with the people we talked to.”
If similar legislation is re-filed, its drafters would do well to come up with a more straightforward proposal, attorney Lee T. Gesmer advised. The failed measure was extremely complex and would have actually led to more litigation, he said.
“The bill suffers from over-lawyering,” said Gesmer, an intellectual property attorney at Boston’s Gesmer Updegrove. “If it became statute, people would’ve been even more confused about non-competes than they are today, and they are very confused today.”
Meanwhile, Russell Beck of Beck, Reed, Riden, who helped draft the legislation, said the bill is not dead but simply needs more time at the bargaining table.
Earlier drafts included a provision that called for an extension of the permissible length of a non-compete agreement. The language was dropped from later versions but likely would have to be included in any future legislation, Beck said.
“I also know that some people felt that the $75,000 threshold was too high or should not exist at all,” he said. “There was a sentiment out there that while it may work when you’re dealing with salespeople, it would not necessarily make sense when you’re dealing with engineers whose salaries might be below the threshold but who had access to trade secrets.”
Despite the setback, the Boston employment lawyer said non-compete legislation still has a future in Massachusetts.
“I’m not disappointed at all,” he said. “I truly believe that this is the right legislation, and I expect it to go through in the next session.”
New England Biz Law Update
