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While this isn’t exactly in line with most of the information I normally provide on www.onesolarroof.com, I thought it was important enough to post in light of all of the growth in the solar business in Massachusetts, and the notable influx of new businesses moving into the area. Massachusetts solar jobs are growing fast, creating new opportunities for experienced and skilled solar industry professionals. New companies with compelling products and services, good business models, and strong balance sheets are moving to Massachusetts to take advantage of the solar market here. This makes them attractive not just for customers but for new employees. Non-compete agreements are a regular part of most employment agreements these days. While these agreements are very effective in making employees think twice before jumping ship to go work for a competitor, enforcing these agreements is rarely a black and white issue, and it’s important to know a little about how they work and what you, as a career-minded employee are reasonably able to do to advance your career without coming into conflict with a non-compete or with your employer. The excerpt below offers an overview of non-competes in the Commonwealth of Massachusetts, and is worth a read. This was prepared by Rubin & Rudman LLP, attorneys specializing in the real-estate, construction, and environmental fields. The Superior Court in Massachusetts has issued additional rulings on whether a noncompete agreement prevents a former employee from working for a competitor. In one recent case, the Court determined that a noncompete was not enforceable because there had been a “material change” in the employment relationship that rendered the agreement unenforceable. In another case, the Court enforced a noncompete where the departing employee joined a competitor and threatened to harm the customer goodwill of the original company. These two cases demonstrate that, if a noncompete is challenged, the Court’s decision will be determined by the specific facts and agreements at issue in each case. First Case: Noncompete Not Enforced In the first case, an information technology consulting firm (Grace Hunt IT Solutions, LLC) acquired an existing business and informed the sales force that their compensation structure would be changed to a bonus program based on billable hours. Grace Hunt asked the employees to sign new noncompete agreements, which the employees refused to do. When the employees went to a competitor, Grace Hunt sought to enforce the noncompete agreements that had been signed with the purchased company. In reaching its decision, the Court held that, although noncompete agreements are enforceable in Massachusetts (unlike in California), a noncompete becomes unenforceable if there is a “material change” in the employment relationship. In this particular case, the Court determined that the change in the compensation plan constituted a material change that rendered the original noncompetes unenforceable. The Court also considered that Grace Hunt tried to have the employees sign new noncompete agreements, which they refused to do. (The case is titled “Grace Hunt IT Solutions, LLC v. SIS Software, LLC”.) Second Case: Noncompete Enforced In the second case, a project manager in the field of disaster restoration attempted to work for a direct competitor despite a noncompete agreement prohibiting work for one year within 40 miles of the company’s offices. The project manager had been responsible for developing business relationships with the company’s customers, and the company had paid for the manager to entertain customers at sporting events and educational seminars. When the manager resigned and began working as a sales manager for a direct competitor, the company was able to demonstrate to the Court that it would lose its goodwill with customers and risked losing those customers to the competitor. The Court balanced the risk of irreparable harm to the company with the small amount of time and money that had been invested in the manager by the new company at the time of the litigation, as well as the manager’s ability to be employed within another division of the new company or outside of the noncompete agreement’s geographic area. (The case is titled A.R.S. Services, Inc. v. Francis Harvey Remodeling, LLC.) Considerations for Enforcing Noncompete Agreements Here are considerations for businesses in drafting noncompete agreements, seeking to enforce noncompetes, or hiring a new employee from a competitor: Evaluate whether the noncompete is reasonable in terms of its time, geography and scope. In the A.R.S. Services case involving local restoration projects, the Court was satisfied with a one-year limitation within 40 miles and limited to the manager’s prior role with the original company. However, if a company has a broader geographic scope, a more expansive restriction could be justified. After the original noncompete agreement is signed, continue to evaluate whether there have been “material changes” in the employment relationship that might render the agreement unenforceable. In the Grace Hunt case, modifications to the compensation plan were deemed to constitute material changes in the employment relationship, rendering the noncompete unenforceable. A company hiring a new employee from a competitor should conduct due diligence on whether the new employee is bound by a noncompete agreement and, if so, the specific terms and restrictions of that agreement. For instance, the company should consider asking the employee if such an agreement exists and to produce a copy for review. Although implementing these measures may not guaranty success if a noncompete agreement or a new hire is challenged, they may provide some level of assistance and protection.

Amid all the skepticism, criticism, and uncertainty bubbling up in the solar industry, the numbers continue to give us reason to be optimistic.

Highlights of a report by GTM Research and SEIA released recently are cause for celebration.

Developers added 449.2 megawatts of solar-generating capacity in the quarter, up 140 percent from 187.3 megawatts in the same quarter last year. The installed capacity was more than the total U.S capacity installed in all of 2009.

Still room to run?

While the numbers are impressive and show signs that the U.S. is beginning to establish its self as a major market for solar equipment and services, almost half of the solar in Q3 came from a small number of large, Utility-scale projects. While utility scale momentum can continue in the current policy environment, there is risk that things will change in a hurry if Congress lets the 1603 Cash Grant Program expire at the end of the year.

The cash grant program is critical to project developers because it provides the bridge financing necessary to get from initial planning to completed construction, and is the key driver of growth in solar power for utilities.

Lately I’ve been encouraged by the frequency and thought going into articles and research on solar electricity, as well as the coverage by mass market news media who are often unable to take a deep dive on any issue, forget something as low profile as solar power.

It was several months ago that I read an article in Scientific American which drew parallels between solar and computing technology. I was so excited to see SA make reference to Moore’s Law, which for our purposes can basically be boiled down as saying that computer chips get cheaper and more powerful at a rapid and sustained rate, essentially doubling in power every 18 months.

While this certainly has not held true for solar, there are components of Moore’s Law which do translate to the power of Photovoltaics, and which although not as rapidly as in computing, have brought us to a period of what look like absurdly low prices for solar in comparison to just 18-24 months ago.

With negative news about high profile solar failures, and the relentless bashing of the Obama Administration (mainly by right leaning media and individuals) for supporting Solyndra, I was, and remain concerned how the average person’s opinion may be affected. Could the talk of big time failures and “tax payer dollars being wasted” make them assume that there is something wrong with the technology, or feel less sure of it’s value?

While it’s not clear how exactly all the bad news is changing perceptions, it’s safe to assume that the failure of Solyndra and others such as Evergreen Solar, right here in my back yard, makes solar can easily become more debatable, and worst of all more complex. A moment of hesitation by, for example, a residential homeowner interested in solar panels on their roof, will result in a no-sale the vast majority of the time, costing the installer up to $300 per opportunity according to Sungevity, a major player in residential solar leasing.

Alas… I can take heart in what I’m seeing now.

So, seeing the Paul Krugman’s article in the New York Times, make reference Scientific American’s assessment gave me a feeling of reassurance. Perhaps the general population is starting to see beyond the noise and distorted data presented by the media, business, and government departments who have access to the general population on a regular basis, and starting to see the facts.

I’ve been blasting people with the idea of Moore’s Law as it relates to solar pv for years, and assuring them that the economics of solar vs. conventional dirty power would come into balance much faster than the politicians and pundits were suggesting. In many states, my state of Massachusetts being one of them, we’re already there.

So what now…?