A recent decision by the Massachusetts Supreme Judicial Court (SJC) has reaffirmed the enforceability of certain post-employment restrictive covenants—specifically, non-solicitation agreements—preserving a critical tool for employers seeking to protect employee and client relationships.
In 2018, Massachusetts enacted the Non-Competition Agreement Act (“Non-Compete Act”), which placed strict conditions on the enforceability of non-compete clauses. This heightened scrutiny significantly impacted employers, particularly in industries like tech and life sciences where such agreements are common. However, the Act expressly excludes non-solicitation agreements from its scope. As a result, many employers began relying more heavily on non-solicitation provisions to safeguard business interests.
On June 13, 2025, the SJC issued its opinion in Miele v. Foundation Medicine, Inc., closing a potential loophole that could have undermined enforcement of these provisions.
Susan Miele served as Head of Human Resources/Chief People Officer at Foundation Medicine, Inc. (FMI). As a condition of her employment, she signed an agreement containing a non-solicitation clause prohibiting her from recruiting FMI employees during her tenure and for one year afterward.
In 2020, FMI and Miele agreed to a departure timeline and executed a Transition Agreement. In it, Miele reaffirmed her non-solicitation obligations and agreed to forfeit significant transition benefits if she breached them.
Shortly after leaving FMI, Miele joined another company and, within two months, three of her former FMI team members followed her. When FMI withheld $300,000 in transition benefits, Miele sued for breach of contract. FMI counterclaimed to recover nearly $1.2 million it had already paid, alleging that Miele’s actions triggered the forfeiture provision.
Miele argued that the inclusion of a forfeiture clause converted her non-solicitation agreement into a “forfeiture for competition” arrangement, thus subject to the Non-Compete Act’s requirements. A Superior Court agreed, holding that such clauses could be unenforceable if not compliant with the Act.
However, the SJC reversed that ruling. It held that the Non-Compete Act does not apply to non-solicitation agreements, even when they include forfeiture provisions. As the Court stated, “[a] nonsolicitation covenant remains just that – regardless of whether the remedy for breach involves forfeiture of benefits.” Accordingly, the Court upheld FMI’s enforcement of the non-solicitation clause and its associated penalties.
This decision reaffirms that non-solicitation agreements in Massachusetts are enforceable and remain outside the scope of the Non-Compete Act—as long as they are reasonable and protect legitimate business interests. Employers can pair these provisions with forfeiture clauses or other remedies without transforming them into non-competes subject to the Act’s restrictions.
The ruling comes at a time of increased scrutiny of non-compete agreements, not only at the state level but also federally. A proposed Federal Trade Commission rule banning non-competes nationwide remains in legal limbo, further complicating the landscape.
Importantly, while states like California, North Dakota, and Oklahoma have interpreted their laws to restrict non-solicitation clauses alongside non-competes, Massachusetts continues to treat them as distinct.
Although Miele specifically addressed non-solicitation of employees, the Court’s reasoning likely applies equally to client non-solicitation provisions. Employers should continue to ensure their agreements are narrowly tailored and aligned with legitimate business needs.
In today’s shifting regulatory environment, well-drafted non-solicitation clauses—paired with meaningful consequences—can offer a reliable alternative to non-compete agreements. Our employment attorneys are available to help employers craft enforceable and effective restrictive covenants.
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