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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

#141

Post by goatherders »

djeikyb wrote: post #62
goatherders wrote: post #48

I've been sued twice over non compete language. The good news is they are reasonably hard to enforce because most judges will ultimately agree that people have a right to change employers. The bad news is it can cost a lot of money to get to the point where the judge says that.

if you don't mind, what state / country?

Twice in Texas for me. In both cases I made paying my legal fees part of my comp with the new employer. The first time I thought a suit might happen. The second time I was sure it would.

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

#142

Post by crdoconnor »

etjossem wrote: post #134
crdoconnor wrote: post #132

Earlier quoted context omitted.

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…

"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."

You don't have to be willing to accept it, just be willing to hear their side of the story.

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

#143

Post by acdha »

_red wrote: post #53
acdha wrote: post #47

Earlier quoted context omitted.

The problem comes from the market disparity: most employees need the job and have limited bargaining power or legal representation while the company has a whole legal team representing their interests. Similarly, the company has a lot more data points on terms and compensation than the prospective worker. As a simple example, the Jimmy John's sandwich chain had a no-compete for their employees. Do you think the avera…

>As a simple example, the Jimmy John's sandwich chain had a no-compete for their employees. Do you think the average person making subs is as comfortable walking away from a job as the company is telling them the terms aren't negotiable? Its true they did have that contract. However it was never enforced and once news of it broke they dropped it. It would like never been enforced since its clearly unlawful. Any legal…

We don't know whether they tried to use it and reached an agreement covered by an NDA (do you accept or spend 10X the amount on legal fees?). Similarly, we don't know whether it was ever threatened as part of a labor dispute: I first heard about it in conjunction with the class action lawsuit about unpaid overtime and it's very easy to imagine that the same manager trying to do that wouldn't hesitate to threaten someone's ability to find another job, secure in the knowledge that nobody working that job has the resources to lawyer up.

That power disparity is the fundamental flaw in your argument. The theory you're repeating sounds great as long as the parties have roughly equal power and knowledge, which just isn't true.

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

#144

Post by closeparen »

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…

Ah, but this is the nature of salary employment. There is no clock, so there is no such thing as "off the clock."

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

#145

Post by fictioncircle »

hkmurakami wrote: post #124
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…

I think the response is rescinded offer. The reasons will likely be along the lines of litigation risk, flight risk, culture fit, etc. Not joking btw. It's rather amazing that employers who expect rational, logical decision making on the job want applicants to suspend their reasoning and good judgment when it comes to negotiating compensation and employment terms.

> Not joking btw. It's rather amazing that employers who expect rational, logical decision making on the job want applicants to suspend their reasoning and good judgment when it comes to negotiating compensation and employment terms.

Which is when you move on to the next employer if at all possible.

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

#146

Post by orangecat »

humanrebar wrote: post #104
grecy wrote: post #45

Earlier quoted context omitted.

> Healthcare is a racket limiting not just healthcare but freedom The fact that Healthcare is tied to employment is downright shocking to virtually all developed countries.

As an American, I'm routinely disappointed every time they announce "healthcare reform" and this issue isn't even part the conversation. Both major parties have failed on this.

McCain tried in 2008: http://www.commonwealthfund.org/publications/fund-reports/20.... The Democrats immediately attacked it as "taking away your existing insurance".

It really is baffling. Everybody would understand that it would be terrible if employers were the primary providers of housing, food, or transportation. But for some reason with health insurance, we not only accept but demand it.

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

#147

Post by mamon »

bmmayer1 wrote: post #50
djsumdog wrote: post #26

Earlier quoted context omitted.

I agree entirely. Student debt and healthcare have evolved to be a means of keeping people trapped in industry. After dealing with health care in other countries, I wrote a post on what I found returning to America: http://fightthefuture.org/article/returning-to-america-and-t... America wants you to work. Work work work work work. Our European neighbours can save up and take a few months off every few years and not h…

To be fair, Americans work. Work work work work[1]. Americans love work and elect politicians who love work. Europeans hate work. Hate hate hate hate[2]. They hate work and elect politicians who also hate work. That major (cultural? economic? social? political?) difference between American and European attitudes towards work might explain these statistics: American vs EU unemployment rate: 4.7% vs 8.2% American vs EU…

One thing about EU vs US comparisons: EU is not a monolith, it is an organization with 28 different member countries.

Some of EU members are on the same level as US (e.g. GDP per capita is $51k for Netherlands, $48k Germany), and then there are poor, post-communist countries like Romania and Bulgaria which have GDP of $20k, which brings EU average down.

Same goes for unemployment: Germany -> 3.9%, Netherlands -> 5.1%, Spain -> 18.75%

Plus, there is no such thing as "European attitude towards the work", because Europe is very diverse in that regard.

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

#148

Post by delinka »

phamilton wrote: post #24
delinka wrote: post #18

Earlier quoted context omitted.

Perhaps you're right if they terminate your employment and the noncompete remains in force. But if they've terminated the noncompete, it's no longer in force and you can find work with a competitor.

Sure, but this is equivalent to being let go without severence. You have no buffer to get you through thr job finding process.

Severance is a wholly different matter. It's completely unrelated to a noncompete clause.

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

#149

Post by rhapsodic »

solidsnack9000 wrote: post #137
rhapsodic wrote: post #117

Earlier quoted context omitted.

>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?

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

You parsed it wrong. I meant to say that consenting adults freely entering (or not) into agreements with other consenting adults is a (not the) hallmark of a free society.

Why do you think that consenting adults freely entering into contracts are analogous to peasants and lords?

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