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Noncompete Clauses: Signing Away the Right to Get a New Job

nytimes.com

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Re: Noncompete Clauses: Signing Away the Right to Get a New Job

#131

Post by ScottBurson »

esoterica wrote: post #114
ScottBurson wrote: post #105

Earlier quoted context omitted.

First off, noncompete agreements and nondisclosure agreements are separate things. I don't see anyone here arguing that an employer's proprietary IP does not deserve protection. Secondly, while there do exist well-compensated noncompetes for executives and other high-value employees -- and I don't think anyone here is arguing against those either -- the vast majority are not compensated at all, except that the employ…

Since you can't lobotomize someone when they quit, it's impossible to prevent someone from using proprietary knowledge and insights at their new job, even with a nondisclosure agreement in place. IP transfer doesn't always happen in a way that's overt and easily prosecutable, like stealing confidential blueprints or explicitly telling your new employer trade secrets.

Well, I think that in most cases, a fair amount of that knowledge qualifies as general knowledge about the problem space, notwithstanding that employers would like to paint it all as proprietary.

Still, there is a little truth in what you say. But we in California think that that is a price very much worth paying in exchange for the more vibrant economy afforded by outlawing noncompetes.

Re: Noncompete Clauses: Signing Away the Right to Get a New Job

#132

Post by crdoconnor »

etjossem wrote: post #126
crdoconnor wrote: post #121

Earlier quoted context omitted.

>You have to bitch and scream to get a contract changed. I've never had to bitch or scream. Just say "Oh and by the way, I have a couple of changes I need made to the contract". Nobody's ever made me feel unreasonable for asking that, not even when I was fresh out of college.

Exactly. It feels even easier and more reasonable if you do the work for them; copy the document, make the changes, export as PDF and send it back. Everyone worth their salt understands employment agreements to be negotiable.

IMO It's better to hear out the concerns of the hiring manager and ask for their side of the story regarding why the clause is there.

That way they feel like they've been heard and their concerns are taken into account which makes them feel better when/if you formulate a new clause.

Sending back a printed list of demands could be interpreted as unnecessarily confrontational.

Re: Noncompete Clauses: Signing Away the Right to Get a New Job

#133

Post by CapitalistCartr »

trustfundbaby wrote: post #90
etjossem wrote: post #9

Worth remembering, especially for those just entering the software field: by the time a potential employer gives you an employment agreement to sign, they've already decided they want you. At that point, it's on them to give you a palatable offer. They may include a noncompete clause for one of two reasons: 1) to prevent you from working somewhere else at the same time, which can create all sorts of conflicts of inte…

Just be ready for the company to pull the offer. Lots of times it's not even on the principle (we don't actually agree to the changes) but ego ... as in "who does this guy think he is pushing back on this contract that 100s of our employees have signed" If you're not ready for the company to walk away, be careful with this approach.

If you're not prepared to walk away from the table, its not a negotiation. They're just telling you what you're going to do.

Re: Noncompete Clauses: Signing Away the Right to Get a New Job

#134

Post by etjossem »

crdoconnor wrote: post #132
etjossem wrote: post #126

Earlier quoted context omitted.

Exactly. It feels even easier and more reasonable if you do the work for them; copy the document, make the changes, export as PDF and send it back. Everyone worth their salt understands employment agreements to be negotiable.

IMO It's better to hear out the concerns of the hiring manager and ask for their side of the story regarding why the clause is there. That way they feel like they've been heard and their concerns are taken into account which makes them feel better when/if you formulate a new clause. Sending back a printed list of demands could be interpreted as unnecessarily confrontational.

Conversely, though - if you're completely unwilling to accept a clause that limits your employment after leaving the company, your starting point should be an agreement that doesn't have such a clause in it. Don't give them the impression they can talk you out of it. By giving them a new document to sign, they are the ones who have to confront you if they want to re-add the noncompete.

This is a your-mileage-may-vary thing and there is no easy answer for all cases.

Re: Noncompete Clauses: Signing Away the Right to Get a New Job

#135

Post by ScottBurson »

arcanus wrote: post #127
ScottBurson wrote: post #94

Earlier quoted context omitted.

> First, it's likely they'll use the phrase "standard contract" and say that it just can't be changed. I wonder what would happen if you said "Ah, so you're stipulating that it's a contract of adhesion. I'd like that in writing, please." Contracts of adhesion can be harder to enforce [0]. (IANAL, and I'm not necessarily recommending doing this, but I am curious what kind of response one would be likely to get.) [0] h…

Not a lawyer, and the Wikipedia was hard to follow. What do you think the implications of this in writing would be?

I think it would mean that it would be more likely for a court to scrutinize the terms of the contract with an eye toward whether they were reasonable and fair, rather than simply enforcing it as written.

(ETA:) This might not help very much, because in places where noncompetes are standard, a court would be sticking its neck out a little to rule that one is unreasonable. But maybe it would help a little, if one couldn't get the provision struck from the contract altogether, and had no reasonable alternative to accepting the job. (Again: IANAL, and I'm just speculating -- no one should take this as legal advice!)

Re: Noncompete Clauses: Signing Away the Right to Get a New Job

#137

Post by solidsnack9000 »

rhapsodic wrote: post #117
solidsnack9000 wrote: post #65

This is a kind of feudalism, where the peasants need to rely on the strength of lords and their knights (lawyers) to enjoy basic freedoms.

>This is a kind of feudalism, where the peasants need to rely on the strength of lords and their knights (lawyers) to enjoy basic freedoms. Actually, I think it's a hallmark of a free society where consenting adults are able to enter into, or not, any agreements they choose. The problem is that some people make bad choices in the agreements they commit to, or they enter them in bad faith, not intending to honor them,…

Why do you think noncompetes are the hallmark of a free society?

Re: Noncompete Clauses: Signing Away the Right to Get a New Job

#138

Post by wikibob »

brightball wrote: post #42

Fwiw, my understanding is that in right to work states a noncompete CANNOT prevent you from earning a living in your field. The clauses have to be defined as very specific, time limited and reasonable otherwise they don't hold up under legal scrutiny. Stuff like, not being able to take current customers to a competing business within a mile for a period of 1 year is considered reasonable.

Right to work is very often misunderstood.

Right to work has nothing to do with noncompete contracts.

It means that you cannot be forced to join a union.

https://en.m.wikipedia.org/wiki/Right-to-work_law

Re: Noncompete Clauses: Signing Away the Right to Get a New Job

#139

Post by bspn »

mikeash wrote: post #30
etjossem wrote: post #9

Worth remembering, especially for those just entering the software field: by the time a potential employer gives you an employment agreement to sign, they've already decided they want you. At that point, it's on them to give you a palatable offer. They may include a noncompete clause for one of two reasons: 1) to prevent you from working somewhere else at the same time, which can create all sorts of conflicts of inte…

I've never been presented with one (and hope I never will) so this is hypothetical, but I have a hard time imagining even doing that. A company is paying me to work for them, they're not paying to own me. When I'm off the clock, my time is my own, up to and including doing paid work for anyone else I want. I'd make an exception if they increased my pay accordingly. But considering that they're asking for 4.2x more of…

Something I've seen a few times is a disclosure mechanism that allows you to declare any side projects that you're working on in your own time and carve those out from the IP assignment rights usually found within NDAs.

Now, you can argue that it's not your employer's business what you do off the clock, but it at least provides a way to protect yourself from falling foul of the agreement and having the company later claim ownership of your work. The key though is to ensure that you don't do any personal work on a company laptop - I believe once you do that all bets are off.

Re: Noncompete Clauses: Signing Away the Right to Get a New Job

#140

Post by easilyBored »

etjossem wrote: post #9

Worth remembering, especially for those just entering the software field: by the time a potential employer gives you an employment agreement to sign, they've already decided they want you. At that point, it's on them to give you a palatable offer. They may include a noncompete clause for one of two reasons: 1) to prevent you from working somewhere else at the same time, which can create all sorts of conflicts of inte…

Non competes should be: Upon leaving you cannot work for a competitor BUT, only if we offer to pay you the salary you had when you left. And only for a max of 1-3 years. Otherwise they should be illegal.
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