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

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

#371

Post by wbl »

err4nt wrote: post #290
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.

I feel like 'poaching' makes sense, I see it used when the recruiters are 'hunting' not in the open market of job seekers, but only 'hunting' within the flocks of their competitors. That's like hunting an animal you're not allowed to hunt = poaching. I think the place where you're doing the recruiting (another company's staff versus the public) is what makes hiring a person from another company poaching in one case,…

I should be allowed to hire whoever I want. Don't like it? Outbid me.

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

#372

Post by rhino369 »

StavrosK wrote: post #173
arcanus wrote: post #127

Earlier quoted context omitted.

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

Writing "this is a contract of adhesion" basically means "we gave this contract to the applicant and asked them to take it or leave it". A court will be much more favorable to the applicant, then, because presenting them with a contract they have little power over is something courts generally don't like, as it is unjust. Asking the employer to write "this is a contract of adhesion" basically means "oh, you're screwi…

Contracts of adhesion still are still pretty solid. Generally, it's only going to get voided if the process (i.e. take it or leave it) and the terms are unconscionable.

Courts uphold shrink wrap and click-to-agree contracts all the time.

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

#373

Post by [deleted] »

TeMPOraL wrote: post #353
developer2 wrote: post #341

Earlier quoted context omitted.

>> I've always just sent a apologetic but firm email saying that I cannot accept those clauses and they always get removed Hold on, everyone! My parent(^) said something simple , yet it is powerful . I don't believe s/he realized they were providing such insightful information, but the little gem that makes a huge difference is in that short quote. While many companies may not be flexible with their contracts, I love…

I was under the impression that for laywers and people dealing with contracts, redlining is a standard practice of sorts, like sending patch diffs in Open Source software development.

[deleted]

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

#374

Post by brightball »

danny_taco wrote: post #314
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.

I think you are confusing right to work with at will employment.

That might be it.

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

#375

Post by developer2 »

ConceptJunkie wrote: post #369
TeMPOraL wrote: post #353

Earlier quoted context omitted.

I was under the impression that for laywers and people dealing with contracts, redlining is a standard practice of sorts, like sending patch diffs in Open Source software development.

While I would always strive to be cordial and civil about these kinds of things, I don't think the difference in presentation would make any difference if the lawyers are involved. Either modifying the terms is acceptable or it's not.

While negotiating employment, one would think it would be natural for prospective employees to engage the services of a lawyer to ensure everything is aboveboard. After all, the company sure as hell had legal draw up and/or sign off on their contracts. With freelance contracts, of course both sides should have lawyers signing off to foster a fair relationship.

Yet what does an employer think if a candidate indicates that they have involved their own lawyer during contract negotiations? Perhaps it's a normal occurrence in major centres (ie: Silicon Valley), or maybe even across the US. I have never heard of a single one of my 1000+ peers over 15 years of experience having done so in my country (Canada).

The very act of engaging a lawyer to read through one's employment contract here would be seen as an aggressive attack against the "integrity" of the employer's business. Red flags galore raised about how this person would be a risk to employ, should they go running to a lawyer over every little grievance.

If I had a lawyer make amendments to my contract and sign off on it, and slipped to my prospective employer that this act had taken place, I'm quite sure my résumé would hit the bottom of the recycling bin within seconds of my name being added to a blacklist of "never communicate with this person ever again; do not reply to their emails, hang up the phone the moment they give their name, call security if they show up at the front desk, etc.". I would be unemployable if I even mentioned the word "lawyer". I suspect cultural differences, with the US being desensitized to the presence of lawyers in an abundance of everyday situations?

So, no lawyer for me. I much prefer the idea of requesting that the company amend the contract themselves to accommodate me, rather than red-inking it myself. Maybe Canadians really are too polite? ;)

tldr; In Canada at least, red-inking your contract on your own has a chance to succeed. But involving a lawyer would make employers avoid you as a high-risk hire.

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

#376

Post by ohazi »

rhapsodic wrote: post #335
huehehue wrote: post #321

Earlier quoted context omitted.

>Again, that is pure BS. No one starves in the US. The number one health problem is obesity. As someone who has been starving in the US and signed a suffocating work agreement to feed myself and keep my apartment, I don't think you know what you're talking about. Plenty of people starve in the US. I don't think I'm an edge case, either -- I have many friends in similar (or worse) situations. If you've never had to st…

>Plenty of people starve in the US. That statement is laughably ridiculous. Can you provide examples, aside from people with eating disorders?

You are either being obstinate, or are comically naive.

Not everyone who disagrees with your apparent "libertarianism with zero exceptions" philosophy is a freedom-hating communist, and your position is indefensible if you are too myopic to even consider some of the very real edge cases where it falls on its face.

Get off your high horse.

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

#377

Post by [deleted] »

scardine wrote: post #368
developer2 wrote: post #341

Earlier quoted context omitted.

>> I've always just sent a apologetic but firm email saying that I cannot accept those clauses and they always get removed Hold on, everyone! My parent(^) said something simple , yet it is powerful . I don't believe s/he realized they were providing such insightful information, but the little gem that makes a huge difference is in that short quote. While many companies may not be flexible with their contracts, I love…

I send the apologetic/firm message explaining my legal advisor rejected some clauses but also send the contract signed: "for your convenience I'm striking the clauses in red and sending it signed (I will be happy to sign a modified contract if you prefer)". In most jurisdictions outside USA, unlimited non-compete and indemnification clauses are not enforceable anyway. Here in Brazil there are special "labor" courts t…

[deleted]

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

#378

Post by AndrewKemendo »

siegel wrote: post #242
AndrewKemendo wrote: post #198

Earlier quoted context omitted.

1) to prevent you from working somewhere else at the same time, which can create all sorts of conflicts of interest, or 2) because it'll keep you from looking for a new job, and they think you're too naive to argue. Actually there is a third reason: An employee leaves and takes proprietary tech to a competitor. The standard answer is: Well that's what an NDA/Confidentiality clause is for so you don't need to worry ab…

I sympathize with what you're saying. But if this were truly such a problem, wouldn't you expect jurisdictions that enforce non-competes to have a more robust startup ecosystem than jurisdictions that don't?

The point I am trying to make is that there are valid reasons to have non-competes that aren't just trying to handcuff employees as that is the standard way of thinking in this thread. Whether or not they could practically be used for them is a different question.

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

#379

Post by ethbro »

paulddraper wrote: post #297
ryandrake wrote: post #293

Earlier quoted context omitted.

Neat, but in practice it doesn't work. In my ~20 years experience, I've found that while things like salary and vacation are negotiable, the terms in tech employment contracts are not negotiable. I've tried that cute "strike out the stuff in your employment agreement that you don't agree to" move, and in ALL cases, received a stern note from the corporate legal department a few days later basically saying "Sign it un…

Yes. While the engineering manager might desperately want you, legal/HR couldn't care less. You can negotiate successfully with the former, but not the latter.

I think the parent point is that if even your hiring manager / new boss can't negotiate with legal / HR... then the company is probably dysfunctional and you wouldn't want to be working there anyway.

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

#380

Post by ethbro »

pm90 wrote: post #361
mcv wrote: post #329

Earlier quoted context omitted.

I always negotiate. Not a redlined version, but I make a list of points I have questions about or disagree with, and call them to discuss it. If they won't budge, I look elsewhere. Of course I have the advantage of living in a place where there's plenty of work. If jobs are scarce where you live, that significantly changes the labour market.

Really depends on a case by case basis. In smaller companies or the recently founded megacorps, managers often have a lot of sway since they are responsible for the survival/growth of the company. So if you're a required hire, the manager might ask his/her manager to push your request through. Much harder to do this in a bureaucratic company that has been around forever since they tend to be pretty inflexible on ever…

Because of this, I usually frame it with a salary-and-benefits-adjusted alternative.

E.g. "I'm very interested in the position we discussed, but would like to discuss clauses X, Y, and Z. These pose a problem for me for reasons. If this is something you could be flexible on, I'd love to see what we can agree on! If these aren't clauses that can be changed, I feel that salary +A and benefits +B would be more in line with what you're asking for."

If phrased like that, you're putting the "choice" back in their hands, but making it clear just how much these things are worth to you.

They may say "Neither of those options works for us," but the difference is that they're making the decision to torpedo your hiring over one of their own clauses. Imo, it's much more difficult to say "These clauses are worth A & B" than it is to say "These clauses are super important."

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