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Non-compete clause and "at-will employment" - MA Massachusetts

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  • Non-compete clause and "at-will employment" - MA Massachusetts

    Is a non-compete clause valid in Massachusetts for a short-term, temporary (6 month) position? I'm in recruiting/HR and my employer/our office is hiring an administrative assistant for 6 months but our standard employment agreement contains a non-compete clause that applies during the term of employment and for 2 years after the employment relationship ends.

    Also, is it correct to assume that "at-will employment" doesn't apply to temporary employment that has an ending date? How do you get around this? Can you specify that the employment will "last approximately 6 months" (no specific end date) and then ask the employee to sign an "at-will employment" agreement, so that we can terminate with or without cause (if we need to, before 6 months is up)?

    Thanks!

  • #2
    First of all, I don't think you're clear on how the at-will doctrine works. All employees of private employers in MA (and almost all other states) are at-will unless there is a legally binding and enforceable contract that says they're not. It is not necessary to sign an at-will agreement; at-will is the default. Simply don't put a definite end date on any documentation about temporary employment.

    As for non-competes, MA will enforce a non-compete agreement and according to my legal counsel, they will generally enforce one for six months (though rarely longer unless there are extenuating circumstances). However, the ONLY way to ensure that a non-compete is binding in MA is to have it reviewed by legal counsel.
    The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

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    • #3
      Agree on everything cbg said. Don't put an exact end date on the time of
      employment.* You don't ever want to put in a contract that an employee
      *cannot* be terminated at any time for any reason before a certain time
      limit has passed. (not that you would - it's just in one of my HR pamphlets
      that an employer should never go that route)

      *They will then be at-will.
      Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

      Live in peace with animals. Animals bring love to our hearts and warmth to our souls.

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      • #4
        Perhaps a statement like "approximately six months, at the discretion of the employer".
        I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

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        • #5
          Very good, Patty. I like that.
          Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

          Live in peace with animals. Animals bring love to our hearts and warmth to our souls.

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          • #6
            Agreed with all the above. The problem is not that spelling out the length of the assignment WILL CERTAINLY override employment at will, but rather that it MIGHT POSSIBLY override employment at will. Smart employers generally do not want to randomize future legal outcomes, and putting things in writting that some lawyer can later argue MIGHT POSSIBLY override employment at will is generally considered to be a BAD THING by most experts. Kind of like driving on bald tires. Not a certainty of a bad outcome, but an entirely preventable possible bad outcome.

            To slightly change the subject, some "experts" say that mentioning "employment at will" in all documents fixes this. Maybe. Maybe not. It indicates intent on the part of the employer if done correctly. It will not hurt the employer to do so. But it is sort of like the boilerplate on the back of the parking receipt that nothing that happens to you or your car while in their lot is their fault. The law is a lot more complicated then that, and at the end of the day the judge makes a call. The law is different state-to-state, which is something these "one size fits all" answers often fail to mention. Some things like mentioning a fixed term of service are a bad idea, but if you really want to know what happens, you need to research specific state law and related court decisions. And most employers want to avoid this ****, not manage it.

            Best choice is always having an attorney who knows local contract law review the document prior to implementation. Second best choice is one of those canned "policy on a CD" programs. Not great, but much better then door #3, which is DIY. You can purchased the canned program for under $100. Not perfect, but likely vastly better then a DIY company policy.
            "Reality is that which, when you stop believing in it, doesn't go away".
            Philip K. **** (1928-1982)

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