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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

#61

Post by avmich »

lotharbot wrote: post #57
mikeash wrote: post #30

Earlier quoted context omitted.

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…

> "When I'm off the clock, my time is my own, up to and including doing paid work for anyone else I want." At least one of the reasons for a non-compete clause is to make sure you're not doing stuff on the clock for your employer, and then getting double-paid by a competitor for essentially the same end result but without the competitor having to pay for the whole process of getting that result. Like, if they're payi…

However that's an insufficient argument for non-compete. The non-compete would prevent that, but also would prevent something much more reasonable.

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

#62

Post by djeikyb »

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?

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

#63

Post by hammock »

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…

>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.

Suboptimal if you're working for a direct competitor. Standard conflict of interest stuff. Would you accept Donald Trump working for Russia on the night shift?

Remember, non-compete is not the same as IP clause - which says anything you create on the job (and potentially off the job) is owned by the company.

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

#64

Post by ScottBurson »

valuearb wrote: post #3

"California law prohibits noncompete clauses, contributing to the inveterate poaching with which the state’s technology industry was founded. It can be brutal for employers, but it helps raise wages and has created a situation where any company looking to hire a bunch of engineers in a hurry, be it an established giant or a start-up, feels it should locate there."

Noncompete enforceability is, to me, a very interesting example of how individuals pursuing their own self-interest leads to a bad outcome for everyone -- a classic Tragedy of the Commons. In a state that allows noncompetes, it's in pretty much every employer's interest to use them and enforce them as much as they can; and yet over the long run, their doing that strangles the economy -- not fatally, but enough so that the Boston area, for example, barely competes with Silicon Valley as a startup hub, despite having an equally impressive local talent base.

Any state that wants to attract more technology companies should start by copying California policy on noncompetes. Yes, existing businesses will fight it tooth and nail, but it will make for a stronger economy.

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

#66

Post by hammock »

etjossem wrote: post #60
lotharbot wrote: post #57

Earlier quoted context omitted.

> "When I'm off the clock, my time is my own, up to and including doing paid work for anyone else I want." At least one of the reasons for a non-compete clause is to make sure you're not doing stuff on the clock for your employer, and then getting double-paid by a competitor for essentially the same end result but without the competitor having to pay for the whole process of getting that result. Like, if they're payi…

Generally this is covered under a confidentiality agreement, which forbids the disclosure of the company's intellectual property. The designs you mention in your example would be considered work-for-hire, and (depending on how specific/proprietary they were) if you sold them to a competitor on the sly, you might be in violation of such an agreement. So no, a noncompete - even one that only applies to the time you are…

Extremely difficult to enforce, depending on the nature of the designs. Cf. the Waymo case for an example of an easier-than-average, but still difficult, case to enforce.

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

#67

Post by etjossem »

hammock wrote: post #66
etjossem wrote: post #60

Earlier quoted context omitted.

Generally this is covered under a confidentiality agreement, which forbids the disclosure of the company's intellectual property. The designs you mention in your example would be considered work-for-hire, and (depending on how specific/proprietary they were) if you sold them to a competitor on the sly, you might be in violation of such an agreement. So no, a noncompete - even one that only applies to the time you are…

Extremely difficult to enforce, depending on the nature of the designs. Cf. the Waymo case for an example of an easier-than-average, but still difficult, case to enforce.

Agreed. It's all a negotiation, though, and from the perspective of the employee you're going to want to present the confidentiality agreement (and possibly a term-of-employment noncompete) as sufficient to ensure your loyalty. You should under no circumstances agree to anything that restricts your options after term of employment.

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

#68

Post by quizotic »

In the early 1990s, I'd co-founded an object database company, with a standard "east-coast-style" non-compete, which among other things, granted us injunctive releif. Our top developer left to work for our main competitor. We sued, and the courts ruled basically that there is no slavery in the US and our developer had every right to earn a living doing what he knew how to do. Maybe laws have changed, and maybe it varies by industry, but my experience is that noncompetes are meaningless. BTW, I don't particularly wish they had teeth, and my company was probably not significantly harmed by the outcome. Just saying I wouldn't sweat too much about signing a noncompete.

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

#69

Post by pyre »

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…

The "un-enforceability" of the clause really depends on the judge you get if it goes to court (if it's not codified in law). By not being proactive, you are rolling the dice on how the judge will rule (and on all of the fees associated with defending yourself in court).

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

#70

Post by stale2002 »

etjossem wrote: post #35
mikeash wrote: post #30

Earlier quoted context omitted.

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 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.

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