
Even janitors have noncompetes now - petethomas
https://www.washingtonpost.com/business/2018/10/18/even-janitors-have-noncompetes-now-nobody-is-safe/?noredirect=on
======
nimbius
Ive seen a few articles like this on HN. Im a shop mechanic for a small chain
of auto/truck repair stores in the midwest, and it got me thinking about the
fine-print I signed when I hired on. Mostly taxes and sexual harassment stuff,
but reading the details over a cup of coffee this morning It seems I did sign
a non-compete.

Worse yet, I asked my boss about the non-compete and she just shrugged and
said she didnt know what it was for, but that HR must have put it there. I
wandered over to HR and they confessed they did not know when this was added
either but it must have been something the owner wanted.

The owner and I have shared a few beers together, so I tapped on his door to
ask about it. After calming him down and reassuring him he wasnt about to lose
me, he admitted the "non compete" was something his attorneys told him to add.
They mentioned Google and Uber as examples. After a few confused questions, he
agreed to call a meeting with the managers and his attorneys and figure out if
we really do need a non-compete, or if the lawyers are just making work.

~~~
Patrick_Devine
It's really important that you did this, and even more important that you
document that you did it. I know it probably seems obvious, but an agreement
is more than a piece of paper that someone has signed. Written contracts
_help_ to determine intention, but they can be superseded by oral contracts if
the intention of the contract changes.

I once sat as a juror on a pretty nasty trial involving a contract where both
parties disputed over the signature. We had to sit through days of testimony
from professional handwriting forensics specialists over who they thought had
signed a particular agreement. Was the signature valid, or was it forged?

In the end, it didn't matter. The two parties acted in such a way to form a
different oral contract, and it was their actions which lead to the jury
determining the outcome of the trial. The contract was a piece of the puzzle,
but it's not the _only_ piece of the puzzle. One party acted in a way as to
misrepresent what was in the written contract, and that was used to determine
fault.

~~~
lowercased
Thanks. I have an attorney friend who gave similar input.

I had someone not pay me for work 10 years ago. I filed a lawsuit, and... got
back 20 page document about all the reasons they said they didn't owe me.

One was we didn't have a written contract. Well, I'd signed their contract,
and sent it back, but never got a countersigned copy, and they're claiming
they never agreed to it.

Another was 'laches' \- I waited too long. Work was done a bit in April, then
I was away for a week, then wrapped up basically by end of May - maybe 6-7
weeks in total. No money in June, lies in July ("it's coming, I sent it, etc")
and then I filed suit in August.

Another was I'd waived my right to payment because in an IM I told the guy I
was working for that I could wait a bit until he got paid. They took that as I
was waiving my right to ever be paid.

I have to go find all my paperwork and screenshots now because - 10 years
later - my court date is set for Dec. I had dozens (hundreds?) of emails and
IM screenshots acknowledging receipt of invoice, promising payment, saying
work was done, final client approved, etc. Email threads about all the work
over several weeks.

At no point during any of that working project was there any "whoah, what's
the invoice for? who are you? why are you working on this project?" The
totality of the working relationship was that I was working on something with
the understanding that they would pay, and there are multiple assurances that
they would, in fact, pay. Yes, lack of 'written contract' was one piece, but
the totality of the picture will hopefully weigh in my favor (but I gotta find
all my stuff and get to court now - it's in another state!).

FWIW, first invoice was submitted, and the 'contract' (which they didn't
countersign) stated invoices would be paid within 3 weeks. Not unreasonable,
and faster than some other places I've worked for. Problem was, the rest of
the project was completed in the next 3 weeks. BIG lessons learned on this
one.

~~~
55555
Wait, why is your court date ten YEARS after the offense? Did you file suit 10
years ago and not get a court date until just now?

~~~
lowercased
Filed august 2008. This case isn't in michigan, but an attorney friend of mine
in michigan said "if this case was in michigan, you'd be at least 5 years
waiting". This is in NYC - even longer.

The company filed against is no longer in business, so I'm not even sure what
to do at this point. It was a small individual LLC, may not be anything to do,
but he was so shitty about it - couldn't pay me, but screwed over multiple
other contractors I found out about around the same time, I drove up to NYC
and filed a lawsuit. I didn't think it would take an entire 10 years to get a
court date.

~~~
badpun
10 years to get a court date in the US? Is this common?

~~~
lowercased
again, per my comment re: michigan attorney, he'd indicated it might be a 4-5
year wait, as things were backed up there. NYC seemed to be 10 years. but i
don't know how common it is.

I've had people say "you should have gone to small claims court!" Except, the
claim exceeded small claims limit ($5k). Perhaps I could have rounded it down
and tried for small claims, which supposedly is somewhat faster, but how do
you know ahead of time this will take 10 years to even appear in court?

~~~
notatcomputer68
That's so dysfunctional I bet it pushes a lot of people to ask the mob for
help with collecting.

------
revel
It's time we took a serious look at getting rid of the unholy trinity of
employment contract law:

\- Non-competes \- Forced arbitration \- Non-disparagement / NDAs

If an offer includes a non-compete, it should also include appropriate
restitution to the employee for the opportunity cost involved. This means paid
garden leave and also extra compensation to help employees find their next job
since their skills are likely to have degraded during the fallow period.

Forced arbitration is used to rob employees of their constitutional rights and
I can't believe that the practice is legal.

Lastly, non-disparagement clauses and NDAs are overly broad. I'm not opposed
to NDAs with limited scope but NDAs have become blanket weapons used to cover
up evidence of illegal or immoral acts by employers. This is particularly
problematic when combined with forced arbitration since it means that
employees subject to wage theft (for instance) are unable to join a class
action suit and verdicts rendered by the arbitration court can be kept secret.

~~~
raverbashing
Any clause that is valid after the termination of the contract (with the
exceptions already in law, like IP) should have a compensatory counterpart

~~~
konschubert
In Germany it's like this.

~~~
kitten_mittens_
Assuming you can read German. My German is horrid, but the German company I
work for assured me contracts can only be in German.

~~~
distances
For international companies it's common to provide a version in both German
and English, with the caveat that only the German version is binding.

~~~
Azareus
That is how it was for me, I got a two-column contract with each paragraph in
both languages.

------
_red
Just as a footnote. The vast majority (90+%) of Non-Competes are basically
boilerplate that are unenforceable in most circumstances. Most businesses
include them as an "optical deterrent" to prevent employees from quitting and
jumping ship, only a fraction of them are enforceable.

Courts have routinely taken the position that "an employment contract cannot
be used to deny a worker from his livelihood in the ordinary course of
business".

The NC which are enforceable are generally very specific and usually cover
things like trade secrets or proprietary data (ie. secret formulas, customer
list, etc).

So you leaving your current job to work at another mechanic shop is entirely
unenforceable, whereas you downloading the entire customer DB and shopping
yourself around to other shops (with data in-hand) probably is enforceable.

~~~
maccard
> So you leaving your current job to work at another mechanic shop is entirely
> unenforceable

And are you willing to go to court and spend years and thousands upon
thousands of dollars to not have that enforced against you?

~~~
michaelmrose
They have to sue YOU for breach of contract damaging their reputation with the
rest of their workforce, discouraging future hires, spending money on
expensive lawyers, potentially waiting years for resolution. If their case is
frivolous as it likely is you could do tens of hours of research and defend
yourself pro se for nothing.

Most people would drop such a suit it seems.

------
subway
Similar to noncompetes, forced arbitration agreements are infesting every
employer/employee relationship. I recently had to pass on joining a really
cool startup because their PEO insisted on an arbitration agreement. The
startup offered to bring me on 1099 to work around the PEO, but I'm not really
interested in the overhead of managing my own health insurance, etc right now.

Somewhat amusingly, days after settling back in at my current employer I
logged in to our PEO's interface and found myself staring at fresh employment
agreement... with a nasty arbitration clause smack in the middle. Fortunately
current employer was willing to stand up to their PEO and get it removed
company wide.

Fucking lawyers man.

~~~
gwbas1c
I'm loosing count of the number of situations I've walked away from because
the contract included boilerplate stuff like that; AND the person who wanted
me to sign the contract had no clue about the BS in the contract.

Right out of college, some guy wanted me to sign a NOLO contract that you'd
use for hiring someone as a general contractor for your home. Walked away from
that.

I almost bought some land where the developer set up a boilerplate HOA that
restricted things like boats in a town where everyone has a boat... And my
direct neighbor wasn't part of the HOA!

------
vpmpaul
If there was ever absolute proof that non-competes are nothing but a way to
exercise absolute power over someone weaker. Now we have it.

~~~
Latteland
Yeah, they clearly aren't important for the software industry, with the
success of California. Yet in Washington State all we hear is that they are
really important, all big companies support them.

~~~
mrfredward
I'd go a step further and say that they hinder the software industry.

Letting people jump ship and start companies or find better jobs is way better
for an industry's productivity than having a bunch of miserable workers faking
it because there are legal barriers to finding another job.

~~~
Nasrudith
It is good for established interests but bad for the industry. Banning all car
makers except Ford would be good for them but bad for the automotive industry
to give a deliberate extreme.

------
finaliteration
This is part of why I’m happy I live in Oregon. We have pretty specific laws
about when a noncompete can apply[0] and Oregon tends to be more employee-
friendly in general.

[0][https://www.oregonlaws.org/ors/653.295](https://www.oregonlaws.org/ors/653.295)

~~~
beardbound
Huh. I hadn't read the statute before so I only knew about the two week
thing.thats great to know. Thanks for the link. (Another person living in
Oregon).

------
Rizz
How would an employer react if the roles were reversed, i.e. the employer
can't hire another programmer for two years if you, a programmer, leave?
Ridiculous of course, which shows why it is just as ridiculous for an employee
to have to agree to a non-compete.

~~~
ttmb
Something like this reversal is actually the law in some countries. An
employer cannot hire someone else for your position for some period of time if
they "lay you off", as distinct from firing you.

~~~
stefkors
Thats cool, what countries are that?

------
yetihehe
Noncompetes implemented smartly are good and not a power grab over employees.
I signed noncompete, but employer is required by law to pay at least 25% of my
salary if he wants to enforce it. That is minimum amount, I have negotiated
50%. If he doesn't want to pay this, he can't dictate where I can work, I
could go to direct competitor then.

~~~
anonymfus
So if these 50% will be less than a living wage (due to extreme inflation for
example) you become slave? At least at Worryfree they were fed.

~~~
yetihehe
I could receive that 50% and work somewhere else (still as a programmer, but
not for direct competitor). But when extreme inflation hits, I will probably
have other problems than my noncompete.

------
hx2a
Even if a non-compete is legally unenforceable in court it can still be used
to bully employees or those who attempt to hire them.

I once worked at a consulting company (one of the big dot-com consulting
companies) that put a clause in the contract that said no employee could leave
to go work for any client of the company. That was fine when the company was
small and had few clients, but when they became large it prevented us from
leaving to go to any reasonably successful firm because almost all of them
were clients. If anyone attempted this the company would reach out to the
potential employer and warn them not to hire the person. The other company
would then back down because they didn't want to jeopardize their business
relationship with the consulting firm.

As the dot-com bubble burst and the consulting firm became a sinking ship they
continued to enforce it. We had to wait for layoffs to be exempt from that
clause.

------
j-c-hewitt
One of the issues with this is that bosses (or their lawyers) just google
search for contracts, paste them into a document, and then have people sign
them without considering whether or not they are enforceable. The
proliferation of these kinds of contracts also makes them less enforceable.
Noncompetes are supposed to be for executives and to prevent people from sales
roles from just stealing their employer's customers and bringing them to their
new job.

It's not supposed to prevent the sandwich guy at Arby's from getting a job at
Subway to earn an extra $2/hr. Were those kinds of contracts to be enforced
consistently, it would bankrupt state courts and create a lot of confusion.

~~~
chillydawg
I doubt many places really do that. In the UK, for example, it only costs a
couple hundred quid for a boilerplate employment contract from a proper
employment lawyer that you can fill the blanks in on and re use for a long
time. Copying and pasting a Google search contract would be insane. Then
again, I'm a sane business owner so maybe I'm not qualified to comment on
dumbass ones.

~~~
j-c-hewitt
Nah, I know for a fact that many employers just C&P the contracts.

------
Teknoman117
This one is of the fantastic things about living in California. Noncompetes
are illegal here. It's not like we don't have a whole bunch of other problems,
but at least this isn't one of them.

------
village-idiot
At a certain point, this is about exercising all but the power of life and
death over your employees. There’s no rational economic reason to force your
janitors into non-competes, the only reason is to have power over your
employees for the sake of power.

I maintain that our system is trending in a neofeufal direction, with
corporations replacing the lords of old. A noncompete which effectively leaves
you unemployed should you quit is not quite serfdom, but it’s getting pretty
close.

~~~
jvagner
I'm a consultant, and recently terminated my services for an inventor-type.
Already has made his money.. he's spinning up various new endeavors and trying
to hit the brass bell again.

While working on company #1, he wanted to bring me in on company #2. He told
me the idea, which didn't interest me a whole lot, but there was a key issue
with it, culturally speaking. I told him I wasn't sure how he would be able to
scale up staff given that people may not want to spend their 40-45 hours/week
working on "X". (I"m being purposefully ambiguous...)

His response? "For a paycheck, they will..."

Anyway, that defined his general management philosophy. It's pretty prevalent
out there.

This is a guy who can't keep talent for more than a few months at a time...
hasn't slowed him down.

I think that's what has impressed me most recently, in my consulting
endeavors. The number of moneyed company owners who persist on a destructive
chain of behavior in spite of how it hurts their own ambitions.

And yet, in cases like this, if you can succeed just enough, there's nothing
stopping you from clamping down because you want to.

~~~
true_religion
I am not seeing the problem with his philosphy. We go to work for money, not
because we are in love with the companies goals.

That sort of thing can come afterwards, but loyalty has to be earned.

~~~
jvagner
i've worked for a lot of different kinds of bosses/owners, and the "check-
writer" philosophy, stated so unapologetically, has often been most closely
aligned with the worst bosses, with the unhappiest employees.

so yes, he can, and no, it's not, IMO, on the more effective end of the scale.

saying that, in and of itself, is often a barometer of a shitty boss.

the good bosses might have a bit of that in them, but they have other values
ahead of that statement that lead them to be better bosses, and IME, more
successful in their given organizations.

------
andyidsinga
fwiw : faq re non-competes in Oregon :
[https://www.oregon.gov/boli/TA/Pages/ta_faq_noncompete.aspx](https://www.oregon.gov/boli/TA/Pages/ta_faq_noncompete.aspx)

interestingly, this item:

<snip snip>

In order to be valid, noncompetition agreements must meet the following
criteria pursuant to ORS 653.295:

\- The employee is exempt from minimum wage and overtime as a “white collar”
employee (i.e., he or she fits into either the executive, administrative or
professional exemption);

\- At termination, the employee’s annual salary and commissions exceed the
median family income for a family of four as determined by the U.S. Census
Bureau;

\- The employer has what is called a “protectable” interest. This means that
the employee will have access to trade secrets or competitively sensitive
confidential business or professional information, such as product
development, product launch, marketing or sales plans and strategies;

\- The agreement is entered into at the beginning of employment (or bona fide
advancement), and the employer has provided a written notice to the employee -
at least two weeks before employment begins - that a noncompetition agreement
will be required; and

\- The agreement is not effective for longer than 18 months from the date of
the employee’s termination.

</snip snip>

~~~
JJMcJ
So 99% of the people who read HN will be subject to Oregon non-competes.

As a comfort, at least the sandwich makers and delivery drivers aren't
covered.

~~~
andyidsinga
yep

------
danschumann
They used to use pensions to keep workers in a job.. now they use non-
competes. I liked the carrot better.

~~~
downrightmike
All it is now is stick stick stick.

------
tombert
I had a job in the past that snuck in a non-compete into the non-disclosure
agreement, which I stupidly signed. Fortunately, the company went bankrupt
before they had a chance, but they sent me an intimidation letter when I quit
that any work I do is subject to their approval, with a photocopy of the NDA
attached. It was horrifying.

------
013a
> One of the central contradictions of capitalism is that what makes it work —
> competition

No.

Competition and Capitalism are literally antithetical. This is outlined better
than I could ever explain in Zero To One by Peter Thiel, but in essence:

Capitalism is all about, including in its very name, the access to and
deployment of Capital. Competition destroys Capital. In its most basic form,
think of the airline industry. It's highly competitive, which forces airlines
to run razer-thin margins and drop prices. This kills R&D, and while its great
for consumers in the short-run, it can actually hurt consumers in the long run
because it doesn't even matter if Delta would love to invest more R&D into
more efficient planes, allowing them to make them roomier and cheaper; they
can't, because they don't have the capital to spend on it.

In the worst case, companies abuse incumbent/monopolistic positions by sitting
on their asses and doing nothing with the capital they bring in. That's why a
market without competition gets a bad rep. But this isn't always the case,
especially in the modern market where companies are deathly afraid of
technological disruption.

Competition is _necessary_ , but that doesn't make it a great thing. And it
certainly is not a core component of capitalism; it's a core, necessary
component of _Free Markets_.

~~~
a7776f88862
This is why antitrust legislation and enforcement is so important.

------
anilakar
EU resident here. It's routine to make employees sign non-compete agreements
even when they're known to be unenforceable. The employer is free to sue, but
it's generally understood that only managerial level people would end up in
trouble.

~~~
maxxxxx
In the US the "beauty" of unenforceable agreements is that the employee still
has to be afraid of them because a lawsuit will be expensive. Not everyone has
a few thousand dollars lying around for a lawyer and the time to pursue the
case. This gives the company a huge advantage and an incentive to sneak in
such clauses.

------
mti27
For a janitor, a non-compete would be ridiculous! As a software developer,
it's annoying but survivable by switching industries. What's worse IMHO is a
non-solicitation agreement. I worked at a business that was shutting down
operations locally, and a bunch of people were leaving at all levels. One of
the departing top execs wanted to hire our development team and we wanted to
go. But due to his non-solicitation, he was afraid to even talk to us about
any plans he had for at least a year. And by that time we all had to find
other jobs...

------
dec0dedab0de
Noncompetes should only be for moon-lighting. For highly skilled employees, or
executives I think an NDA for any trade secrets should be enough.

~~~
dsfyu404ed
Non-competes shouldn't exist at all.

There's no good reason for a maintenance, food service or custodial worker, or
even most programmers (don't kid yourself about how novel the crap you work on
is) couldn't work for two competing companies without a conflict of interests.

If two competitors could both outsource the service provided by the employee
to the same entity without a conflict of interests then it shouldn't be
subject to a non-compete.

NDAs for trade secrets and reasonable policies on use of company assets and
time should be able to cover the edge cases.

~~~
dec0dedab0de
Sure there wouldn't be a conflict of interests, but if I had a business, and I
found out one of my employees was working for a direct competitor, it would
hurt my feelings. I think it's fair to fire someone who hurt my feelings. And
maybe I'm just talking about a policy instead of a noncompete contract.

------
jwilk
Archived copy without GDPR nag screen:

[https://web.archive.org/web/20181018173502/https://www.washi...](https://web.archive.org/web/20181018173502/https://www.washingtonpost.com/business/2018/10/18/even-
janitors-have-noncompetes-now-nobody-is-safe/)

------
lordlimecat
It would be a bit more compelling if the articles the author referenced to
support his claim that non-competes are everywhere were not all written by
him.

It makes me wonder, are these common scenarios, or is the author on a crusade
and has found some rare instances of it happening that he is blowing out of
proportion?

------
gumby
Ironic that they chose to illustrate their article with a photo from SF where
noncompetes are illegal.

~~~
ghaff
Not illegal but generally unenforceable.

------
wolco
Changing your name could be the next trend.

------
s73v3r_
Noncompetes, especially ones that seek to limit what you can do after the
employ of the company are pure evil, and give absolutely no benefit whatsoever
to the employees. They should be unilaterally banned.

------
skh
Perhaps the U.S. should go ahead and formalize the feudal system we seem to be
implementing piecemeal.

~~~
HarryHirsch
In a feudal system the money flows up and the protection flows down - look at
Putin and his oligarchs. In the US it's only the money that flows upwards.

~~~
craftyguy
What makes you think the feudal system wouldn't have preferred to have only
money flow up and nothing flow down? The only reason feudal lords provided
protection was because if they didn't, there would be no money flowing up to
them.

~~~
HarryHirsch
In the Middle Ages the serfs always had the opportunity to run away, they
could decamp to a city or a competing lord. Besides, the Church and later the
rising merchant class provided a counterweight to the excesses of rural
gentry. They may have preferred absolute power, but they couldn't have it. If
you are an oligarch in Russia it seems you still have the opportunity to run
off to London or Vancouver, so history repeats itself even now.

~~~
Anthony-G
Serfs were bound to the land and not much better off than slaves. Another lord
would not have welcomed a runaway serf and escaping to a city would have been
an extremely risky venture as serfs had little – if any – money (subsistence
farming was the order of the day, when not working for the lord on his lands).
Giving up their family and wider social support network to become an anonymous
beggar in a city would not have been a good move. Even if one had a skill, the
city guilds controlled the ability to use skills for commercial purposes. It’s
possible that a few people (e.g., gifted musicians) may have been able to
escape the bonds of serfdom. I also don’t know how easy it was for a serf to
join a monastery or a convent – but otherwise, I imagine the proportion of
serfs who could run away to the city is likely to have been equivalent to the
proportion of modern-day Mancunian kids who escape the council estate by
playing for Manchester United.

~~~
HarryHirsch
Wikipedia would have you believe the contrary:
[https://en.wikipedia.org/wiki/Fugitive_peasants](https://en.wikipedia.org/wiki/Fugitive_peasants)

"Stadtluft macht frei" and the related "year and a day" are still German
proverbs. Eric Hansen made similar assertions here (popular history, but
sounds plausible):
[https://www.amazon.com/-/dp/3596173248/](https://www.amazon.com/-/dp/3596173248/)

~~~
Anthony-G
I knew the experience of European serfs varied a lot in terms of freedoms and
obligations to their lord but everything I’d read until now about life in
feudal Europe lead me to understand there was very little mobility – and
particularly so for the lower classes. That Wikipedia article provides an
interesting counterpoint so thanks for that.

I’d also only come across “a year and a day” as the pre-marriage trial period
that a couple would spend together in the tradition of hand-fasting – and the
old common law standard regarding attribution of cause of death. I was not
aware that it also served as the length of time that escaped serfs would be
legally freed if they managed to survive that long.

------
0x8BADF00D
We have not had real capitalism in this country since the Gilded Age, when the
dollar was backed by gold. Fiat currency and Keynesian economics sparked the
mess that were are in today.

~~~
dragonwriter
> We have not had real capitalism in this country since the Gilded Age

Yeah, capitalism _globally_ fell to the mixed economy throughout the developed
world, to the point that most modern references to “capitalism” refer to the
mixed economy, not the original system named “capitalism”, because while
people may not have been sold on the prescriptions of more radical
alternatives like Communism, they broadly weren't satisfied with capitalism,
either.

------
vxNsr
> _One of the central contradictions of capitalism is that what makes it work
> — competition — is also what capitalists want to get rid of the most._

The subtext of this, that capitalism is bad (and perhaps socialism is better)
is pretty disingenuous. The only reason non-competes work is because we don't
have pure capitalism (I'm not arguing for that, it'd be bad, but) the
government is stepping in and saying you have to follow the rules of this
contract which are not in your best interest.

~~~
jakelazaroff
Au contraire: "pure capitalism" would permit two parties to sign any binding
contract they wish, free from government regulations about which clauses are
permissible.

~~~
samatman
Binding how exactly? Government enforcement is what makes contracts binding.

One could contemplate a private mercenary force which enforces contracts but
what actually distinguishes that from a government?

~~~
jakelazaroff
I'm not claiming that "pure capitalism" prohibits a government from enforcing
contracts — just that it wouldn't impose a particular restriction on non-
compete agreements, as OP claims.

------
paulie_a
Outside of very special industries and knowledge you can blatantly ignore non
competes without consequence. They are basically unenforceable for most
circumstances and no attempt will be made.

~~~
lawnchair_larry
Not true, depends on the state. Californians tend to assume this is universal,
but other states do uphold them.

~~~
stale2002
Whether or not other states "uphold" them is missing the point.

The point is that is is quite easy to get a job, and just not tell your
previous employer.

And they don't want to waste time paying a lawyer, either.

You'll almost certainly get away with it, regardless of what your contract did
or did not say.

~~~
ghaff
For the janitor, sure. And, yes, non-competes are beyond ridiculous for
janitors, fast-food workers, and the like. For senior people? It's actually a
pretty small industry. If an employer actually cares, they can find out pretty
quickly where an ex-employee has landed especially if they're in a visible
externally-facing role.

As you say, under most circumstances most companies don't actually care even
if they have some boilerplate non-compete clause. But some do, especially in
places where close client relationships are important or where it's a senior
person moving to a direct competitor.

