Laws barring noncompete clauses spreading • Hacker News Board

Re: Laws barring noncompete clauses spreading

#221

Post by lazide » Wed, Nov 02, 2022, 4:32 PM UTC

michaelmrose wrote: post #168

toomuchtodo wrote: post #29

Earlier quoted context omitted.

I agree. If you want to pay someone to sit on the bench because that has value to you ("Garden Leave"), I support that. If you want to twist their arm because you have power as an employer, nope. That's what labor law and regulation are for. Lots of examples of malicious employers doing the latter, as you'll note the sentiment throughout the thread comments and laws intending to patch this bug in statute.

Why let them have that at all. The honest true is instead of worrying what strategy most balances the interests of 99.9% of people and a few whiny rich people we could spend that time creating actual value. Whereas if you want to continue on with the Rube Goldberg device we ought to force them to pay not employers present rate but market rate and cost of foregone opportunity. You might say that's incredibly unafforda…

Because employees can be shitty people too. See my comment upthread about an up close and personal view I had to one such shitty employee.

What you seem to be advocating is to never allow a company employee to have a non compete clause, even if the company is happy to pay for it.

Which yikes. Do you think what Levandowski did with Waymo/Uber helped anyone? Including ‘society’ overall?

Re: Laws barring noncompete clauses spreading

#222

Post by lazide » Wed, Nov 02, 2022, 4:41 PM UTC

Bjartr wrote: post #211

lazide wrote: post #122

Earlier quoted context omitted.

Yeah no. From your link ‘9) “Trade secret” means information, including a formula, pattern, compilation, program, device, method, technique, or process, that: (A) Derives independent economic value, actual or potential, from not being generally known to the public or to other persons who can obtain economic value from its disclosure or use; and (B) Is the subject of efforts that are reasonable under the circumstances…

A customer list can absolutely be reasonably considered to be information with actual and potential value from not being generally known to other persons (competitors) who would obtain economic value from it's disclosure. So long as you make a reasonable effort to keep it from being public knowledge, it meets the criteria you quoted.

Thanks for reading the ref!

In most court cases I’ve seen about this, it isn’t enough to keep it from being public.

It has to be protected from employees to the degree necessary to keep it a secret. It’s why all the song and dance around the ‘secret ingredients’ in KFC/Pepsi/Coke ‘secret recipes’ (that and marketing). If it was common knowledge at the company, even if it wasn’t public knowledge, they couldn’t use the trade secrets acts to prosecute offenders.

If everyone at the company knows who is on the customer list, including folks who don’t have a privileged need to know it, it isn’t a secret. It just isn’t public knowledge. That still means it isn’t eligible for trade secret protection.

So while yes, it’s possible - if they do that - it’s not at all common with how the information is protected in my experience, and it would be very difficult to actually prosecute anyone under the trade secrets laws because of it.

Civil lawsuit? Different burden of proof, different calculus. Tort law is about being compensated for a loss or injury, after all, and there is no requirement that such loss or injury have been from a criminal act.

Re: Laws barring noncompete clauses spreading

#223

Post by origin_path » Wed, Nov 02, 2022, 6:23 PM UTC

ryandrake wrote: post #220

sokoloff wrote: post #192

Earlier quoted context omitted.

> why not just pay the higher wages to start with and skip the risky and slow training? It’s not like walking around with sacks of money and hiring people interested in that money is low-risk. I’ve found training to be lower risk/uncertainty than hiring in terms of fewer outright failures and negative surprises.

Yet, companies just love to hire instead of retain. Take an employee who just got trained/experience and is now worth $N, who is currently making $N-2. Most companies I've worked with would piss and moan about giving that employee a raise to $N-1. They'd rather let him leave. Then, they suddenly have no problem hiring a relatively unknown employee and paying him $N+2. It's never made sense to me in all my decades in…

You talk as if figuring out what an employee is worth is easy, and that worth is absolute (same to all employers). If you have competitors who are willing to pay a premium over what the skills are worth to the first company not to train someone, then this situation can arise.

Re: Laws barring noncompete clauses spreading

#224

Post by michaelmrose » Wed, Nov 02, 2022, 11:49 PM UTC

lazide wrote: post #221

michaelmrose wrote: post #168

Earlier quoted context omitted.

Why let them have that at all. The honest true is instead of worrying what strategy most balances the interests of 99.9% of people and a few whiny rich people we could spend that time creating actual value. Whereas if you want to continue on with the Rube Goldberg device we ought to force them to pay not employers present rate but market rate and cost of foregone opportunity. You might say that's incredibly unafforda…

Because employees can be shitty people too. See my comment upthread about an up close and personal view I had to one such shitty employee. What you seem to be advocating is to never allow a company employee to have a non compete clause, even if the company is happy to pay for it. Which yikes. Do you think what Levandowski did with Waymo/Uber helped anyone? Including ‘society’ overall?

I don't care what they are happy to pay for. There are plenty of other tools available to protect the interests of companies. For example Levandowski stole trade secrets and is being sued for 9 figures and indicted. You couldn't have picked a worse example of the need for post employment non-competes if you tried.

Likewise your other example is an employee taking an employees money and their customers at the same time. It would have been sufficient to bar him from competing and working against the employers interests WHILE he was there.

If he had quit and called prior customers and said I know you do business with blank but I can do better would that really have been wrong?