The case for banning non-competes • Hacker News Board

Re: The case for banning non-competes

#231

Post by macksd » Fri, Jul 16, 2021, 6:46 PM UTC

trentnix wrote: post #62

mabbo wrote: post #23

There are two kinds of non-competes, and both have problems. First, there's the really nasty ones saying "If you ever work here, you can't work for any competitor for X years", and they're clearly abusing of employees, labor, etc. I hope there is a straight up ban on that. The second kind is "You can't compete with us while you work here". And that is a much more complex beast. Obviously, if I work as a developer mak…

But my employer does everything. There is no field that my employer is not involved in, somehow. You can guess who they are, probably, or just read my profile. And they say "You cannot do anything that competes with anything we do". Which is everything. Want to make a Sudoku app? That's a game, we do games. Want to do some open source ML library work? We do ML, you can't do ML outside of work (I asked legal that one)…

> They implored me to trust that they had "never sued anyone" and "have no intentions to", and I think they honestly believe that. But then why have the non-compete at all?

I feel like I'm yelling at a brick wall when I make a fuss of this, but this happens every time I see a doctor too. I'm asked to sign forms acknowledging I've read and understood long legal documents that they don't have a copy of to show me.

"It doesn't matter". Well I can't see the doctor without signing it. It only matters if they don't get their way. The same is true of the non-compete: it's because it only benefits them.

Re: The case for banning non-competes

#232

Post by ghaff » Fri, Jul 16, 2021, 6:48 PM UTC

wombatpm wrote: post #204

jvreagan wrote: post #136

Earlier quoted context omitted.

I would like to understand whether there are any states that even occasionally backs the employer in non-competes for the general layperson. In my experience, courts tend to side with someone who's willing to work over employers. This is why non-competes are a joke in the US. Courts aren't going to enforce them. Almost every state has an industry where moving between companies, or starting companies to compete with e…

I think that Massachusetts takes the anti-California approach. The medical and pharmaceutical industries have really pushed for string enforceable NCC

Companies like EMC also pushed for them.

But changes in the law in 2018 weakened them considerably and made them more expensive to enforce via garden leave or alternative consideration. The only time I've had a non-compete in MA (small sample to be sure) was when EMC acquired my employer. The terms were actually fairly reasonable and didn't affect me when I left six months later.

Re: The case for banning non-competes

#233

Post by macksd » Fri, Jul 16, 2021, 6:50 PM UTC

mabbo wrote: post #23

There are two kinds of non-competes, and both have problems. First, there's the really nasty ones saying "If you ever work here, you can't work for any competitor for X years", and they're clearly abusing of employees, labor, etc. I hope there is a straight up ban on that. The second kind is "You can't compete with us while you work here". And that is a much more complex beast. Obviously, if I work as a developer mak…

The first one is absolutely problematic, and I've been personally negatively affected by other people's non-competes a couple of times, but there's some nuance there, I think.

I would like to live in a world where companies invest heavily in educating and training their employees and where there's a lot of transparency within companies. One of the reasons you don't get that is because of the fear of an employee getting seduced by a tiny pay increase and losing a bunch of competitive edge / trade secrets / investment.

There are other ways to address that than non-competes, granted, but we're not doing those things either. In place of more nuanced non-competes you just get more companies expecting you to take on the risk of buying your own education to be trained in a job, bureaucracy and lack of trust in employees, etc.

Re: The case for banning non-competes

#234

Post by majormajor » Fri, Jul 16, 2021, 6:50 PM UTC

jfengel wrote: post #209

vineyardmike wrote: post #177

Earlier quoted context omitted.

My offer letter explicitly stated that starting work (and accepting the stated pay) constituted agreeing to all the docs sent over, unless explicitly agreed upon otherwise. I can't wait to have enough savings to quit and move to california where the employee protections are so much higher.

It's interesting to hear you say that, moments after coming from a thread where people were explaining why California is so terrible. I feel like the symbol of the 2020s is Chesterton's Fence[1], people chafing against restrictions and then having to reinvent them. I'm sure that some people are indeed fleeing California, and will then immediately start reinventing it. Not that that's necessarily a bad thing. The rein…

It's perpetually curious to me when people blame CA problems on a lack of upzoning and then ... move to much less dense places with plenty of NIMBYism.

Sure, you're getting away from the problem, but not because anyone there has a solution - just because they haven't been hit by the same problem to the same extent yet, because "sprawl outwards" works for a long time when you have less geographical boundaries.

Re: The case for banning non-competes

#235

Post by orangecat » Fri, Jul 16, 2021, 6:56 PM UTC

caconym_ wrote: post #168

mabbo wrote: post #23

There are two kinds of non-competes, and both have problems. First, there's the really nasty ones saying "If you ever work here, you can't work for any competitor for X years", and they're clearly abusing of employees, labor, etc. I hope there is a straight up ban on that. The second kind is "You can't compete with us while you work here". And that is a much more complex beast. Obviously, if I work as a developer mak…

> Obviously, if I work as a developer making a stock trading app, I shouldn't be making a competing stock trading app after hours. For rank-and-file employees, I don't think this is so obvious. It presents a potential conflict of interest, sure, but if I'm fulfilling my job responsibilities and not holding anything back or stealing nonpublic info/trade secrets/whatever then what's the problem? It shouldn't be the mer…

It presents a potential conflict of interest, sure, but if I'm fulfilling my job responsibilities and not holding anything back or stealing nonpublic info/trade secrets/whatever then what's the problem?

This is a bit like "sure I'm dating one of my direct reports, but as long as I don't show them any special treatment what's the problem?". In both cases even if you genuinely believe what you're saying, it causes your incentives to be very much misaligned with your employer's.

Re: The case for banning non-competes

#236

Post by yellow_lead » Fri, Jul 16, 2021, 7:04 PM UTC

wolverine876 wrote: post #91

trentnix wrote: post #62

Earlier quoted context omitted.

But my employer does everything. There is no field that my employer is not involved in, somehow. You can guess who they are, probably, or just read my profile. And they say "You cannot do anything that competes with anything we do". Which is everything. Want to make a Sudoku app? That's a game, we do games. Want to do some open source ML library work? We do ML, you can't do ML outside of work (I asked legal that one)…

> They implored me to trust that they had "never sued anyone" and "have no intentions to", and I think they honestly believe that. But then why have the non-compete at all? Exactly. 'That's great; we can resolve that issue easily. Let's just skip the non-compete - you're not using it anyway and I'm not comfortable with it.' EDIT: A non-lawyer's suggestion (talk to a lawyer before you do this): Skip signing or edit do…

That's a pretty good idea for emailed PDF documents. Typically, I have received a link to a signing service, and editing is not enabled by their UIs of course.

Re: The case for banning non-competes

#237

Post by akomtu » Fri, Jul 16, 2021, 7:08 PM UTC

mabbo wrote: post #23

There are two kinds of non-competes, and both have problems. First, there's the really nasty ones saying "If you ever work here, you can't work for any competitor for X years", and they're clearly abusing of employees, labor, etc. I hope there is a straight up ban on that. The second kind is "You can't compete with us while you work here". And that is a much more complex beast. Obviously, if I work as a developer mak…

If your side project is at least a two man operation, say that all the work is done by your buddy, while you only have ownership rights. Or say your buddy hired a cheap noname outsourcing firm or even a freelancer who did the work and vanished. At the end of the day, software is too complex and it's unprovable that you did any of it.

Re: The case for banning non-competes

#238

Post by masklinn » Fri, Jul 16, 2021, 7:09 PM UTC

redler wrote: post #220

masklinn wrote: post #116

Earlier quoted context omitted.

> Like going to work for McDonalds R&D after leaving Burger King as the VP of product design. Don't rightly see why there would be any issue with that. If you bring McD IP to BK, then that's an IP theft issue. > I once worked for a major bank and someone who left another major bank held a meeting with developers of a next-gen platform where he basically explained, in explicit detail, his old employer's entire platfor…

At what point does an explanation like this turn into "here's an inside look at exactly how their platform outcompetes you in area X"? Where does one draw the line?

> Where does one draw the line?

https://en.wikipedia.org/wiki/Trade_secret

Re: The case for banning non-competes

#239

Post by filmgirlcw » Fri, Jul 16, 2021, 7:19 PM UTC

zippergz wrote: post #138

trentnix wrote: post #62

Earlier quoted context omitted.

But my employer does everything. There is no field that my employer is not involved in, somehow. You can guess who they are, probably, or just read my profile. And they say "You cannot do anything that competes with anything we do". Which is everything. Want to make a Sudoku app? That's a game, we do games. Want to do some open source ML library work? We do ML, you can't do ML outside of work (I asked legal that one)…

Also the people claiming (and believing) that they have no intention of suing are not the people who make the decision to sue or not (unless it's an extremely small company, or you are an important enough hire to be discussing this with the CEO and General Counsel). Even if they have the best intentions, some random recruiter or manager really has no insight into this.

Absolutely -- very early in my career, a startup I worked at had non-compete language in my original employment contract (naming very specific places I couldn't be poached to take a job at) and even though the company was very small and the person who made me the job offer was the COO (and they assured me they would never actually excise the non-compete), I still refused to sign until that language was taken out.

I also got language put into my contract to specifically allow for some of my moonlighting activities that could possibly be seen as a conflict. Both wound up being useful when the company expanded and they attempted to enforce different rules on me. Because my contract said what it said, I was able to get the HR person to back-off and didn't have any fear when I did eventually leave for a competitor. And because of my moonlighting clause, I was able to have side-projects when other employees were often discouraged from doing the same thing (part of me felt bad for having different rules, but if I was capable of getting those clauses put in my contract when I was 24, others were too).

It is true that employees, especially lower-level employees, don't always have the leverage to change the contracts they sign (especially at larger companies), but I would personally never sign a non-compete unless there were very specific scenarios involved (i.e. it was either incredibly, incredibly narrow or the company would pay me while I waited out the non-compete), no matter what HR or the recruiter says. You don't need to be adversarial when discussing language or making changes -- most places are reasonable. And if a place isn't reasonable but refuses to remove non-compete language from a contract, even though they swear they will never exercise it, well, that's a giant red flag.

Re: The case for banning non-competes

#240

Post by filmgirlcw » Fri, Jul 16, 2021, 7:22 PM UTC

yellow_lead wrote: post #236

wolverine876 wrote: post #91

Earlier quoted context omitted.

> They implored me to trust that they had "never sued anyone" and "have no intentions to", and I think they honestly believe that. But then why have the non-compete at all? Exactly. 'That's great; we can resolve that issue easily. Let's just skip the non-compete - you're not using it anyway and I'm not comfortable with it.' EDIT: A non-lawyer's suggestion (talk to a lawyer before you do this): Skip signing or edit do…

That's a pretty good idea for emailed PDF documents. Typically, I have received a link to a signing service, and editing is not enabled by their UIs of course.

In that case, you simply need to email back before signing with the changes you need made. The company will do that to you if they get something wrong (wrong start date, incorrect pay or bonus percentage), so it is completely reasonable to have a conversation about what adjustments you need made to your contract. The worst they can say is no. And if they say no, that's a sign that you should really think about what you are signing.