Don’t be fooled: Non-compete agreements are enforceable. I say this because the following exchange has been all too typical over the past several months:

Client: “I just landed a new job, with better pay and more room for growth. Can you look at my new employment agreement?”
Me: “Sure. Did you happen to sign a non-compete with your old employer?”
Client: “I think so, but I’ve heard that non-competes are pretty much unenforceable in Massachusetts.”
Me: “Unfortunately, that’s not the case. Non-competes are enforceable in Massachusetts, albeit under limited circumstances.”

In Massachusetts, non-competes are in fact enforceable where they protect a legitimate business interest and are reasonably limited in both temporal and geographic scope. If your employer has asked you to sign a non-compete, its a safe bet that the company’s counsel has crafted the agreement to give it the best chance of standing up in court.

One of Apple Inc.’s newest executives, Mark Papermaster, recently fell victim to the non-compete he signed with his former employer, International Business Machines Corp. (IBM). After leaving for Apple in October, IBM sued Papermaster, claiming that the move violated his non-compete agreement in which he agreed not to work for a competitor within one year after leaving his job.

On October 22, 2008, IBM filed its Complaint in the Southern District of New York in which, among others requests for relief, it petitioned the court for a preliminary injunction preventing Papermaster from working at Apple. In particular, IBM claimed that the agreement is enforceable because it protects a legitimate business interest since Apple is a competitor.

In his Affidavit, Papermaster challenged IBM’s assertion that Apple competes with its business. Specifically, Papermaster noted that “IBM focuses on high-performance business systems such as information technology infrastructure, servers and information storage products, and operating systems software” (Para. 13). Papermaster went on to state that “Apple, on the other hand, is in the business of designing, manufacturing and marketing consumer-oriented hardware and related products” (Para. 14). In the end, IBM’s argument resonated with U.S. District Judge Kenneth Karas, who ordered Papermaster to immediately “cease his employment with Apple Inc. until further order of this court.”

Non-competes have fueled a growing debate in Massachusetts over the last year. As reported in Boston.com’s article entitled, Why ‘noncompete’ means ‘don’t thrive ‘, making non-competes illegal in Massachusetts could greatly benefit the local economy:

The partners at Spark Capital, a Boston venture capital firm, began a campaign … to get rid of noncompetes in Massachusetts. They sent a letter to Governor Deval L. Patrick in which they predicted that the result would be “more start-ups originating in the Commonwealth, a reduction in the exodus of talented people, and the ability for Massachusetts to better compete nationally and globally as a hub of innovation.”

While businesses may oppose such a move, such a position could be short-sighted. Its not unreasonable to assume that IBM has found itself in Apple’s shoes before, hoping to a hire a key employee whose talents and ideas could be fully realized. In the long run, promoting the free flow if ideas and labor is good for employees and employers alike. Some companies seem to be catching on. As reported in the same article, Google’s Cambridge office does not require its employees to sign non-competes. Hopefully, this mindset will continue to gain traction.

The bottom line: If your employer asks you to sign a non-compete, YES it can be enforceable and YES you should have it reviewed beforehand to protect the career to which you have devoted countless late nights, early mornings, and weekends.