White House urges ban on non-compete agreements for many workers • Hacker News Board

Re: White House urges ban on non-compete agreements for many workers

#261

Post by drewcrawford » Wed, Oct 26, 2016, 2:31 PM UTC

tjic wrote: post #146

tristor wrote: post #139

I don't understand why there's so many people in the comments defending non-competes. They have literally no value to society, or to individual employees. They are a tool of restrictive coercion to stifle an employees freedom of movement in the job market. Trade secrets, IP, secret sauce: covered by NDA and IP assignment agreements Client lists, contract terms, sales strategies, reported metrics, financials: covered…

> I don't understand why there's so many people in the comments defending non-competes. They have literally no value to society, or to individual employees. To go meta for a moment: I think that this sort of statement exposes a flaw that many of us have in debates. It's related to the "argument from ignorance" fallacy, but is not exactly the same thing. I take it as one of my priors that people at news.yc are intelli…

> 1) deontological: freedom to contract is always a good thing.

A good thing for whom? It is good for lawyers and others who benefit from writing contracts.

Imagine for a moment a world in which you sign a non-compete before ordering a burger. It sounds silly, but sillier clauses are signed in order to purchase far cheaper consumer goods every day.

Is the world really a better place because two parties are hypothetically able to achieve their longtime dream of finally combining a legal instrument and a sandwich? Are you excited that you "have local knowledge" and are ready to exploit this knowledge to review legal terms with counsel before ordering your burger OR is this hypothetical benefit dwarfed by a very real huge volume of people who aren't going to hire a lawyer to negotiate a contract of adhesion for a $10 purchase when under social pressure while they're dining with someone else?

Freedom to contract is not always a social good. It introduces complexity, and complexity creates friction which prevents people from participating optimally in a market and prevents the market from clearing. Contract innovation is not optimal for the burger market.

What is optimal is common law, which is mostly the same everywhere so that an entire society understands how it works. It's how the police know what to do when facing a diner who didn't pay their bill, it's how you know what to do when the order is wrong, it's how a business can hire employees who know all this stuff without training them on custom procedure. Standardization is optimal for the vast, vast majority of transactions, so that people can get on with whatever they do when they're not negotiating legal instruments. The benefit of designing something bespoke for some marginal case is dwarfed by the cost of increased complexity of the transaction and the deviation from the established standard.

If you believe that job contracts are so positive and innovative, insist on reviewing one as a condition of doing an interview. If it is really about local knowledge, surely it will be positive for all involved to develop that knowledge early and comparison shop. In reality people will look at you funny and probably decline, because the real function of that contract is to appear after you've decided to take the job and exploit social pressure in order to get a stronger deal for the company.

Re: White House urges ban on non-compete agreements for many workers

#262

Post by jomamaxx » Wed, Oct 26, 2016, 2:31 PM UTC

flukus wrote: post #84

jomamaxx wrote: post #60

Earlier quoted context omitted.

"It doesn't matter how much R&D was created. That's the role of patents to deal with that thing." I'm beginning to think none of you have ever worked in companies that actually produce IP. First off - that's not what patents are for. Patents protect publicly known information - not trade secrets. And they don't do it very well. There are very few things you can defend with a patent. What companies are concerned with…

> If you work at DWAVE for 5 years and learn everything you know about Quantum Computing there - and go to Google to work on Quantum Computing - then there is basically a 100% chance that you are passing on 'know how' and 'trade secrets' - otherwise - Google would not hire you. That isn't trade secrets, it's experience.

"That isn't trade secrets, it's experience"

No.

100% false.

If that information is key to the nature and success of a product, then it's called 'know how' and it's both legally and rationally protectable.

You people need to grow up and grasp that fact that once you go to a company and they teach you what they have spent $100 Million dollars on developing, that you cannot walk across the street and spill the beans on 80% of the materiality of that R&D which happens to be such details.

Re: White House urges ban on non-compete agreements for many workers

#263

Post by cableshaft » Wed, Oct 26, 2016, 2:31 PM UTC

tehwalrus wrote: post #143

dagss wrote: post #127

Earlier quoted context omitted.

When the company purchases equipment for use by you-as-employee, and you use that equipment for your own company spare time, how is that fair? A pencil is so cheap and undetectable that it makes a poor example, but if you stole my paint and painted a picture I would expect some compensation?

Bad example: I'd expect prison for theft (the paints aren't re-usable afterwards.) Better example: borrowing a rular and giving it back, using a company car but paying for the fuel and a service yourself, etc.

...prison? Really?

Considering the price of paint I would expect it to most likely be a civil case, at best.

Re: White House urges ban on non-compete agreements for many workers

#264

Post by jomamaxx » Wed, Oct 26, 2016, 2:32 PM UTC

Hondor wrote: post #78

jomamaxx wrote: post #60

Earlier quoted context omitted.

"It doesn't matter how much R&D was created. That's the role of patents to deal with that thing." I'm beginning to think none of you have ever worked in companies that actually produce IP. First off - that's not what patents are for. Patents protect publicly known information - not trade secrets. And they don't do it very well. There are very few things you can defend with a patent. What companies are concerned with…

> If you work for ABC corp and they make a 'sales automation tool' - and you go off and build your own 'sales automation tool' - then fine. It's not about IP or trade secrets. You can do as you like. Unless you have a noncompete clause. That's exactly why they're a problem. You can't develop your professional skills. When you leave, you have to start from scratch in a different industry.

"Unless you have a noncompete clause. That's exactly why they're a problem. You can't develop your professional skills. When you leave, you have to start from scratch in a different industry."

Buddy - I'm saying there should be no 'non compete' clause in that situation. Obviously - there's no basis for it because there is no IP involved. Which is a case of over-aggressive application of these protocols.

Re: White House urges ban on non-compete agreements for many workers

#265

Post by Fiahil » Wed, Oct 26, 2016, 2:34 PM UTC

masklinn wrote: post #179

Fiahil wrote: post #142

Earlier quoted context omitted.

Yes, and it's rarely enforced. Most of the time its activation is at the employer's discretion.

It's not just that it's rarely enforced it's that it's rare at all, there's no point in putting one in the contract when there's 95% chance you'll get big fat middle finger in whatever labor court has jurisdiction if you try to activate it, and inane contractual obligations are a risky bet for the contract itself.

Well, I got this clause in all of my (two) employment contracts. Never heard of someone fighting over a non-compete, though.

(I live in France)

Re: White House urges ban on non-compete agreements for many workers

#266

Post by jomamaxx » Wed, Oct 26, 2016, 2:36 PM UTC

michaelmrose wrote: post #149

jomamaxx wrote: post #74

Earlier quoted context omitted.

Your comments about NDA's are not quite right. NDA's do not capture a lot of the essential issue. Pragmatically speaking, it's nary impossible to work in some fields, and then move to a competing firm without passing on know how or trade secrets. Even the 'manner of approach' to a problem, while it may not be a trade secret, is basically a core part of the 'true IP' that is developed by a company. Using DWAVE as an e…

I don't buy for one second that anything not covered by trade secrets, patents, or nda ought to be protected. You bought the employees labor for a finite duration not the contents of their skull. Intellectual property is a bit of a misnomer it has very little in common with property of the standard sort and the burden falls upon you to explain why we ought to create greater artificial scarcity for imaginary property.

"I don't buy for one second that anything not covered by trade secrets, patents, or nda ought to be protected. You bought the employees labor for a finite duration not the contents of their skull."

+ My point is nearly everything that you learn at a company could be considered a 'trade secret' - depending on the company or project.

In the example I gave, I listed a variety of situations in which minute operational skills and knowledge, all contribute to be 'key information' regarding the development of the product, and can essentially be 'trade secrets'.

Ergo - it would be nary difficult to work for a competitor and not give that information up.

Re: White House urges ban on non-compete agreements for many workers

#267

Post by cableshaft » Wed, Oct 26, 2016, 2:37 PM UTC

TeMPOraL wrote: post #155

Silhouette wrote: post #112

Earlier quoted context omitted.

Which full salary, the one you got before, or the one you could make as a skilled software developer moving to a much better gig with a rival employer willing to offer a more attractive deal?

Depends. I'll happily take my old salary for just sitting on my butt and not doing anything. Of course, I would not be sitting like that - I'd probably take a part-time job somewhere else, and spend the rest of the time educating myself (for my field as well as for other things). Non-competes don't cover reading books.

Or you could develop some software in your spare time for your own use that you could repurpose for commercial sale and release once the non-compete has lapsed.

Re: White House urges ban on non-compete agreements for many workers

#268

Post by fmavituna » Wed, Oct 26, 2016, 2:39 PM UTC

tristor wrote: post #230

fmavituna wrote: post #203

Earlier quoted context omitted.

Sorry I wasn't clear on the original comment, how can NDA stop a developer to use what he knows while writing code or creating procedures? If you are a developer and worked on a code for 2 years. NDA cannot cover what you know what you don't. Your know-how that you captured on that company can simply be replicated in another company. You'll write the code from scratch, and NDA or copyright, or even patent in majority…

What you're describing isn't "intellectual property", it's experience. The company you work for has no legal claim to your experience. Your experience is a personal asset which has value in the market and is a direct reason why a company hires and compensates you to do that job.

And that's exactly my point. This is why non-compete makes sense. To repeat, because none of the stuff you have mentioned can replace what non-compete provides.

Re: White House urges ban on non-compete agreements for many workers

#269

Post by jomamaxx » Wed, Oct 26, 2016, 2:39 PM UTC

alkonaut wrote: post #115

jomamaxx wrote: post #60

Earlier quoted context omitted.

"It doesn't matter how much R&D was created. That's the role of patents to deal with that thing." I'm beginning to think none of you have ever worked in companies that actually produce IP. First off - that's not what patents are for. Patents protect publicly known information - not trade secrets. And they don't do it very well. There are very few things you can defend with a patent. What companies are concerned with…

> but companies deserve the right to protect their IP Sure. What I have in my head isn't the companies IP though, it's my experience. "IP" is often confused with "the collective experience of your employees". IP is physical artifacts such as code, drawings, patents etc. The memory of having written that code is not part of the IP, nor is the capability of doing it again in a fraction of the time.

"What I have in my head isn't the companies IP though, it's my experience."

Again - 100% false. A lot of 'what is in your head' is the IP of the company you worked for.

Clearly, you grasp this, because you people seem to accept that NDA's are valid.

So - that yo accept and 'NDA' is valid, means you accept that 'what is in your head' can be the property of the company.

These 'I'm paid for labour' arguments are naive. You are paid to create outcomes, and to keep information about the company private - indefinitely.

Re: White House urges ban on non-compete agreements for many workers

#270

Post by cmdrfred » Wed, Oct 26, 2016, 2:39 PM UTC

otoburb wrote: post #249

cmdrfred wrote: post #226

Earlier quoted context omitted.

I have been told by a lawyer friend of mine that for a contact to be valid both parties must have the ability to negotiate it. He said that is why most non-competes are unenforceable in the first place as you don't really have the leverage to negotiate that for most jobs. I took his advice and advantage of his letterhead and told a previous employer to pound sand when they wanted me to not work for a competitor. Work…

Perhaps to help establish a lack of negotiating leverage, one should always ask for the non-compete clause to be removed in writing and then save the (highly likely) employer pushback for future use. In general, it's a good rule of thumb to archive written communications (paper or electronic) for any deal, but it's easier said than done when part of the negotiation takes place over the phone.

That might work. If I wanted to put an employee under a non-compete the easiest way seems to offer something in return. Something along the lines of: "...Employee shall not work for any competitor during his employment and 6 months thereafter, as such he will receive a one time payment of 10,000 dollars...". I think the main issue here is employers want this service for free.