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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

#31

Post by dsacco »

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…

> In the end, most employers won't bother to argue the second point, and the ones that do are probably shadily taking advantage of you in other ways.

I can't say if you're right or wrong about this, but personally I'm pessimistic about the claim.

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

#32

Post by vladimirralev »

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…

Anecdotally, I had a case where I managed to strike out the whole noncompete from the contract. And the management still came after me, because they "didn't read it" or "thought it's something else". They knew they had no standing but still went ahead to claim an implicit noncompete. So yes, in the end you are legally covered, but once someone demands a noncompete out of the blue after the compensation is negotiated, that's not an honest party and will probably get pissed off if you dispute it. Noncompetes cost money, they should be disclosed at appropriate time and people should be compensated for it.

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

#33

Post by logicallee »

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…

Why do you have to fix an unenforceable clause at all? On moral principle?

Are they gonna tell you over some barbeque, "Hey by the way Bill you know and I know that we can't TECHNICALLY enforce the clause preventing you from working in this industry for two years after leaving your position with us but we both know that it was very shitty of you to take a job in this same sector."

Who's going to say that with a straight face? Is there a moral aspect?

If there's no moral aspect, why do you have to revise unenforceable clauses? ("let sleeping dogs lie.")

I wanted to make sure the proverb I said was what I meant, this is the dictionary definition that came up: "avoid interfering in a situation that is currently causing no problems but may well do so as a result of such interference."

Doesn't that describe redlining unenforceable clauses you don't like?

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EDIT: Thanks for the replies guys. I was specifically asking about California. I think the replies give good reasons why you should redline unenforceable clauses (and this comment has been downvoted, but I'm keeping it for context for others reading the thread.)

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

#34

Post by MrMorden »

watertom wrote: post #12

Health insurance is also part of the rigged labor market. The only reason big companies offer health insurance is because it limits employees's freedom. It would be easy for the Fortune 100 or 200 in unison agree to eliminate health care and provide a higher salaries. It would make the companies more competitive globally and it would free them from a whole lot of other nonsense, but they don't drop healthcare. The re…

Employer-provided healthcare got started in the US because of wage and price controls (employers were allowed to improve healthcare benefits but not increase salaries directly), and continued because it's exempt from income tax.

Some big companies may prefer it this way, but a lot of others with plenty of political clout (e.g. carmakers) don't. On the whole, that's not a major reason employer-provided healthcare is still afflicting us.

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

#35

Post by etjossem »

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…

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 first job, you may have to make concessions - for some folks, "if you want a paycheck, sign here" is a reality.

If nothing else, it is very important that you keep the right to move up and out to a new job. That's the point you should focus on. In a realistic full-time first job, you're not going to work for a competitor at the same time, so it is fine to tell them you won't if that helps the two sides reach agreement.

Good point about not taking "this is the standard agreement" for an answer. That's not good enough. Say you understand that it's a boilerplate legal document, and you'd be more than happy to give them a couple days to double-check your proposed change with their boss, counsel, or whoever they need to. Again, be firm while giving them an avenue to save face, and wait for them to call back with a sudden change of heart.

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

#36

Post by etjossem »

logicallee wrote: post #33
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…

Why do you have to fix an unenforceable clause at all? On moral principle? Are they gonna tell you over some barbeque, "Hey by the way Bill you know and I know that we can't TECHNICALLY enforce the clause preventing you from working in this industry for two years after leaving your position with us but we both know that it was very shitty of you to take a job in this same sector." Who's going to say that with a strai…

I had to do this in a place that wasn't California.

Also, they generally don't track you down at a barbecue. They'll try to tell the company you are jumping ship to that your employment there would be illegal, as TSG Finishing did. The future employer will then have to send back strongly worded letters clarifying California employment law. Frankly, you want to avoid that whole mess in advance.

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

#37

Post by MrMorden »

flamedoge wrote: post #7
valuearb wrote: post #4

Earlier quoted context omitted.

There are plenty of Republicans who are against this type of mercantilist behavior.

there are republicans who arent? they are suppose to defend free market

The article provides one example of Republicans defending the free market, but usually that's the last thing on their minds. (See e.g. how the phrase "everything is bigger in Texas" applies most of all to government.)

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

#38

Post by vostok »

stupidhn wrote: post #25
vostok wrote: post #16

Earlier quoted context omitted.

It's not excellent because they stop paying you if they terminate the noncompete, but you also can't look for a new job until the very end of your noncompete period.

I'd love to know where you live that an employer can fire you and expect you to honor a non compete. The second they stop paying you your obligations end. No judge in the land will prevent you from being unable to earn a living.

You can find a new job if your noncompete is terminated. The problem is that you might have a 12 month non-compete so you might book a 3 month vacation at the beginning because nobody will hire you 12 months in advance.

You're just left in the lurch if your former employer then terminates the noncompete within a month and stops paying you. The alternative of just sitting home for those 12 months doesn't sound great either.

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

#39

Post by flamedoge »

watwut wrote: post #29
flamedoge wrote: post #11

Earlier quoted context omitted.

I think it's fine. Dirtier the connotation, the greater the company must feel to fight against it to keep you.

They fight by making mutual agreement that they wont hire each other employees.

Probably should work for neither of them then. Like a workers' strike except on free market level.

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

#40

Post by _red »

RcouF1uZ4gsC wrote: post #8

Using "poaching" to describe a company hiring someone from another company, needs to die. Companies do not own people. It is strictly a business relationship. I think that the US as a whole should follow California in outlawing non-competes. It definitely has been shown to be workable.

Agreed with the silly use of the name 'poaching'. But how exactly is the state preventing two people voluntarily entering into a contract a good thing?

Its pointless anyway, a first year law student will just rewrite as non-circumvent + no-solicit + NDA agreements.

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