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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

#261

Post by _v7gu »

pfarnsworth wrote: post #227
deaddodo wrote: post #219

Earlier quoted context omitted.

Your new employer doesn't have to fight anything. Non-executive non-competes are specifically disallowed by the CA gov't. It's up to your previous employer to prove you were an executive (upper management/c-suite) and sue you, not vice versa.

But then you have to deal with a lawsuit, hire a lawyer, etc. Just because it's unenforceable doesn't mean that your shitty employer can't sue you. Why not just head it off at the beginning and have it right there in the signed contract?

It'd be thrown out immediately anyway, due to having no legal basis (at least in the mainland European civil law systems)

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

#262

Post by 0898 »

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…

When my previous employer sent me my offer letter and contract, they'd already signed it on their side. I simply crossed out the non compete clause, signed it and returned it. I don't think they even noticed.

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

#263

Post by astrange »

AlphaSite wrote: post #59
bmmayer1 wrote: post #50

Earlier quoted context omitted.

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…

Unemployment figures are people who aren't employed but are searching for work, so I'm not sure it says exactly what you're trying to say. People who don't want to work, don't show up in unemployment.

The people who count these figures _have_ thought of this, you know - this is called "mid-brow dismissal". They publish more than one number.

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

#264

Post by astrange »

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,…

All things you can freely choose do in life were already dictated by those who came before you.

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

#265

Post by rocqua »

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,…

No, the problem is that sometimes, people are not able to refuse a work agreement. There are plenty of cases where a potential employee essentially has a choice between signing and starving. If the employer knows this, that is no longer an agreement between consenting adults.

If I put a gun to your head, and you then 'consent' to an agreement where you give me money, and I don't shoot you, is that a hallmark of free society?

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

#266

Post by edanm »

algesten wrote: post #43

I had a previous employer trying to stop me from working directly for a client. Only, I had brought in the client, I was the only one working for that client and that client didn't want anything to do with the rest of my employer. I felt morally OK with the situation... Only, my contract did have a noncompete. But then, this is Sweden, and noncompete clauses are almost not enforceable by Swedish law. An employer can'…

For what it's worth, this is exactly the reason non-competes do make sense to enforce. (or in this specific instance non-solicitation agreements).

Not to say you necessarily did anything wrong, since I don't know anything about your situation except for your comment. But take a "typical" case similar to yours, and look at if from the employer's point of view. They give you access to stability (a salary), office/equipment, potentially training, potentially their reputation. All of which helps you get a client and focus solely on the client.

If, after all their investment, you can walk off with the client, depriving them of the income that they would've earned, then that makes it less likely for future employers to make these kinds of investments in people.

(Again, this is the generic case for non-solicitation/non-compete, your particular case could be totally different in all the ways that matter).

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

#267

Post by edanm »

I'd just like to point out that there is a case to be made for noncompetes, they're not just a terrible thing that companies do because they can. I recommend reading "The Case for Non-Competes" by David Henderson (http://econlog.econlib.org/archives/2016/11/the_case_for_no....).

Here's a relevant quote (in which the author is actually quoting Aaron McNay):

" Both employers and employees would like to be able to train the employees if the cost of doing so is less than the gains in productivity. However, there is a potential collective action problem here. What happens if the employer provides the training, but the employee then moves onto another job? The employer bears the burden of the training costs, but does not receive any of the benefits. As a result, the employer does not provide the training, and a mutually beneficial trade is not made.

By preventing the employee from being able to move, a non-compete agreement eliminates the collective action problem."

I'm not saying that non-competes are necessarily good, or necessarily bad. It depends on the circumstances. But I do think that a lot of other commenters in this thread do think that non-competes are necessarily bad, and I think that's incorrect.

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

#268

Post by m-j-fox »

stale2002 wrote: post #70
etjossem wrote: post #35

Earlier quoted context omitted.

This suggestion is mainly directed at newcomers to the industry, who may not have the reputation or experience to be able to credibly push back on many points of their employment agreement. Once you're in a seller's market for your level of skill (as I'm sure you are), you don't need this advice anymore and I'd encourage you not to let your employer restrict your moonlight projects. But particularly if it's your firs…

It depends on the state. In California, for example, Non-completes are notoriously unenforceable. I'll sign whatever illegal documents you want me to sign, knowning that they don't matter. You might respond by saying something like "what if they go after you anyway, even though it is unenforceable.". But the problem is that they could just do that anyway, illegal contract or not.

Wasn't this a plot point in Silicon Valley?

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

#269

Post by ygra »

sroussey wrote: post #247
deaddodo wrote: post #218

Earlier quoted context omitted.

They're not "notoriously difficult to enforce", they're specifically unenforcable to non-executives. The CA legislature and judiciary have long since settled any questions regarding these and also have frameworks in place for companies trying to make you an "executive engineer" or "director of blah" to try and get around it.

Beyond that, not just the clause is unenforceable, it invalidates the whole contract.

Isn't there usually a clause at the end stating that even if some parts are unenforceable, the rest of the contract still holds?

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

#270

Post by Macha »

edanm wrote: post #267

I'd just like to point out that there is a case to be made for noncompetes, they're not just a terrible thing that companies do because they can. I recommend reading "The Case for Non-Competes" by David Henderson ( http://econlog.econlib.org/archives/2016/11/the_case_for_no.... ). Here's a relevant quote (in which the author is actually quoting Aaron McNay): " Both employers and employees would like to be able to tra…

In the example you gave, you could make an argument like that but it'd still only feel any way fair iff:

* It started from the start of the contract/end of the initial training. * It was for a period much shorter than 2 years * It was voided if the employer terminated the contract

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