Category Archives: Noncompete agreements

Sarah Tishler’s article about legislation that would apply Massachusetts law to remote employees was recently published in Massachusetts Lawyers Weekly.

The article is titled “Measure would mandate Massachusetts employee protections for remote workers.”

assachusetts House Bill H. 2090 proposes a significant expansion of the state’s employment laws by extending protections — specifically regarding restrictive covenants like noncompetes — to remote workers employed by Massachusetts-based companies, regardless of where those employees actually reside.

According to the article, this legislation represents a novel shift in legal jurisdiction, focusing on the employer’s base of operations rather than the employee’s domicile to determine applicable law, thereby overriding contractual choice-of-law provisions unless a clear, mutual waiver is negotiated. If enacted, the bill would broaden the scope of the Massachusetts Noncompetition Agreement Act (MNAA) but threatens to complicate the national legal landscape, potentially creating scenarios where the same employment agreement is void in Massachusetts yet enforceable in other states

The article can be accessed online here and is available in its entirety below.

he fractured national landscape on restrictive covenants may become even more complex.

In January, Massachusetts lawmakers introduced H. 2090, “An Act securing the application of Massachusetts law to employees of employers incorporated or operating in Massachusetts who provide their labor and services remotely.”

If enacted, the bill would extend Massachusetts’ reach to regulate employment agreements for remote workers, ensuring that Massachusetts law governs their employment terms unless an employer can demonstrate a clear, mutual and non-adhesive contractual waiver.

H. 2090 appears to be the first attempt by a state to extend the protections of its employment laws to employees working remotely for companies within its borders. This proposal sits squarely at the intersection of a growing tension: state statutes mandating application of their own law and forums versus contractual provisions selecting another jurisdiction.

Courts across the country remain divided on how to reconcile those competing commands, and while the issue has come before the U.S. Supreme Court, it has thus far declined to take up a case that would decide it. Without action from Congress or the Supreme Court, the issue will continue to result in different outcomes depending on where a given case is being heard.

Statutory trend

Over the past decade, at least nine states have enacted laws prohibiting employers from contracting around state limits on restrictive covenants: California, Colorado, Louisiana, Massachusetts, Minnesota, Montana, North Dakota, Texas and Washington.

To take the most well-known example, California has layered these protections on top of its historic statutory ban on noncompetes. Section 925 of the California Labor Code prohibits employers from requiring California residents to adjudicate outside California or to waive substantive California rights, and the recently enacted Section 16600.5 renders void any noncompete regardless of where it was signed or where employment was maintained.

Massachusetts itself acted earlier through the Massachusetts Noncompetition Agreement Act, or MNAA, which not only imposes strict substantive and procedural requirements on employee noncompetes but also mandates that claims involving Massachusetts residents must be brought in Massachusetts courts under Massachusetts law.

H. 2090 would expand that principle dramatically, applying the MNAA — and other Massachusetts employment laws — even to employees who never set foot in the commonwealth, so long as they perform work remotely for a Massachusetts employer.

In an interesting development that is aligned with H. 2090, U.S. District Court Judge Indira Talwani recently applied the Massachusetts Wage Act, G.L.c. 149, to a remote employee based in Ukraine who worked for a Massachusetts company. See Serebrennikov v. Proxet Group LLC d/b/a Rails Reactor et al., No. 1:22-cv-12051-IT (D. Mass. Oct. 20, 2025). As Talwani wrote, as long as Massachusetts had “the most significant relationship” to the parties and their employment, the Wage Act may be applied extraterritorially.

‘Howmedica’ cases and their progeny

The uncertainty over how courts treat statutory mandates versus contractual choice of law and forum selection clauses was exemplified in a pair of cases: Howmedica Osteonics Corp. v. DePuy Synthes Sales, Inc., 28 F.4th 956 (9th Cir. 2022), and Howmedica Osteonics Corp. v. Howard, 2020 WL 1102494, at *3 (D.N.J. Jan. 17, 2020), report and recommendation adopted, 2020 WL 1082601, at *1 (D.N.J. Mar. 5, 2020).

The disputes involved California employees who left Howmedica (a New Jersey-based company) to join competitor DePuy Synthes. Their employment agreements included New Jersey forum selection clauses.

The 9th Circuit refused to enforce those clauses, reasoning that California Labor Code §925 represented a strong public policy against forcing California residents to litigate outside California.

By contrast, the U.S. District Court for the District of New Jersey upheld the exact same clauses, applying federal law and Atlantic Marine Construction Co. v. U.S. District Court, 571 U.S. 49 (2013), which strongly favors forum selection clauses.

The Supreme Court denied certiorari, leaving the contradiction unresolved.

Howmedica thus shows how the same contract provision can be void in one jurisdiction and enforceable in another — a dynamic that Massachusetts’ H. 2090 is poised to replicate if enacted.

Courts split on enforcing statutes vs. contracts

The Howmedica divide continues to reverberate. For example, in Ronnoco Coffee LLC v. Castagna, the Eastern District of Missouri enforced a Missouri forum selection clause against a California employee, refusing to apply §925.

Similarly, the 8th Circuit in C.H. Robinson Worldwide Inc. v. Traffic Tech Inc. upheld a Minnesota choice-of-law clause despite California employees’ statutory protections.

By contrast, courts in Delaware and Massachusetts have treated state statutes as strong public policy. The Delaware Chancery Court in AG Res. Holdings, LLC v. Terral enforced Louisiana’s forum selection statute, and the Supreme Judicial Court in Oxford Global Resources, LLC v. Hernandez refused to enforce a Massachusetts forum clause when California law pointed the other way.

Case law trends from recent decisions

A review of recent cases reveals several patterns:

Statutory overrides succeed most often in California. Courts regularly apply statutes such as §925 or §395 to void contrary clauses (O’Connell v. Celonis, Inc., 2022 WL 3591061; Ruff v. Wilson Logistics, Inc., 2022 WL 1500014; Blair v. INFORM Software Corp., 2023 WL 137471).

Outside California, contracts often prevail. In Texas, Colorado, Oregon and other states, courts tend to enforce forum clauses absent a statutory override (Ameri-Fab, LLC v. Vanguard Energy Partners, LLC, 646 F. Supp. 3d 795 (W.D. Tex. 2022); Reneau v. Penske Truck Leasing Co., 2024 WL 1586300 (D. Or. 2024)).

Public policy treatment diverges. Some courts, like Jackson Contractor Grp. v. Travelers Cas. & Sur. Co., 2022 WL 16541163 (E.D. Wash. 2022), treat statutory mandates as controlling. Others, like Hilb Group of New England, LLC v. LePage (E.D. Va. 2020), discount them.

Hybrid outcomes are emerging. In N.Z. v. Fenix Int’l Ltd., 2025 WL 1122493 (C.D. Cal. 2025), California residents retained statutory protections, but nonresidents were bound by the contract.

Arbitration complicates matters even further. In Zhang v. Superior Court, 85 Cal. App. 5th 167 (2022), review granted, a delegation clause meant the arbitrator — not the court — decided whether §925 applied.

Massachusetts proposal in context

H. 2090 goes beyond Massachusetts’ existing noncompete statute by explicitly targeting remote work. It provides that Massachusetts law applies to remote employees performing services for Massachusetts-based employers, regardless of where the employee physically sits, unless the employer negotiates an individually bargained waiver.

This raises several significant issues:

• Overlap with the MNAA. If H. 2090 is enacted, remote employees outside Massachusetts could invoke the MNAA’s substantive protections — such as advance notice requirements, “garden leave” pay, and limits on scope and duration — even if their contracts point to another jurisdiction. A software engineer in Texas working remotely for a Boston employer could argue that her noncompete is void under Massachusetts law, despite the contract’s Texas choice-of-law clause.
• Extraterritorial conflict. Other states may resist applying Massachusetts law to their residents, just as courts outside California have sometimes declined to honor §925. Employers could face litigation in both Massachusetts (where the statute would control) and the employee’s home state (where the contractual clause might be enforced).
• Remote work as the new battleground. Whereas California statutes have largely focused on employees physically residing in California, Massachusetts’ proposal explicitly extends protections based on the location of the employer. This flips the traditional analysis on its head: Instead of focusing on the employee’s domicile, it centers on the employer’s base of operations.

Bigger picture

The Howmedica litigation showed that the same forum selection clause could be void in California but enforceable in New Jersey. H. 2090, layered onto Massachusetts’ existing noncompete statute, threatens to replicate that dynamic for remote employees nationwide.

For multistate employers, this means that a contract clause selecting New York or Delaware law may not insulate them from Massachusetts’ statutory requirements if the employer is Massachusetts-based and the employee performs remote work. And for employees, it offers the possibility of invoking Massachusetts’ restrictive covenant protections even without residing in the commonwealth.

Whether courts outside Massachusetts will honor that statutory command is an open question. But if recent cases teach anything, it is that statutory mandates matter most when enforced in state and lose force when tested elsewhere.

Until the Supreme Court steps in, H. 2090’s proposal to extend Massachusetts’ noncompete regime to remote employees may, if enacted, be embraced at home but resisted abroad, adding to the patchwork that employers and employees alike must navigate.

Sarah Tishler is a partner at Beck Reed Riden LLP. Sarah’s practice is concentrated on trade secret and restrictive covenant advising and litigation, employee mobility, and commercial litigation. Sarah has won successful outcomes for clients on both sides of these disputes in all stages of litigation, including the preliminary injunction stage, jury trials, and mediation. Sarah has also counseled clients on the identification and protection of trade secrets, and the enforceability of noncompetes and other restrictive covenants. Sarah was named by the Legal 500 as a Rising Star for 2023 in the area of Trade Secrets