
When the Guy Making Your Sandwich Has a Noncompete Clause - aaronbrethorst
http://www.nytimes.com/2014/10/15/upshot/when-the-guy-making-your-sandwich-has-a-noncompete-clause.html
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jakozaur
Two models that make sense:

\- California, non-competes are not enforceable

\- Poland, you can make non-compete for the time you pay full salary (e.g. if
company wants you to restrict employment for 3 months after leaving it, you
will get your salary during that period)

~~~
johnward
My understanding of the CA model was that they are unenforceable except for
when an employee has a controlling interest in the company. For example you
could enforce a non-compete on a co-owner who tried to create a competing
service. At least that's the way I interpreted it.

~~~
rbcgerard
yeah my understanding is that it is very state-to-state - I think in TX they
are unenforceable unless they are part of the sale of a business in which you
are an owner and hence receive compensation as part of the sale...

~~~
JamesBarney
This is slowly changing as the courts are starting to enforce non compete
clauses they wouldn't enforce 5 years ago.

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nissimk
Non compete clauses do not make sense for employees that are not highly
compensated. They are a violation of the 13th amendment and frequently
unenforceable. This doesn't stop people from trying to use them as a tool to
increase employee retention especially in the face of poor work conditions and
bad management. If an employer insists on one, you should ask for
compensation. Make sure they agree to pay you some amount greater than your
equivalent total compensation with benefits for the entire duration of the
non-compete period.

~~~
notacoward
One of the problems with being poor is that you might not be able to afford
lawyers to contest a suit over a non-compete. Therefore, we can't rely on
_post hoc_ legal remedies. Companies need to be proactively prevented, via
regulation, from trying to pull this kind of stuff.

~~~
eggoa
As VLM notes elswhere in this thread, being poor also means you're usually
"judgment proof" (i.e. too poor to be worth suing).

~~~
x0x0
But it's often the next employer that is intimidated into not hiring you. So
the poor person gets fucked.

~~~
VLM
Most employers don't waste time on references given the legal liabilities,
references are only required as a tradition, to prove you know how to play the
game, so I think they're safe... with the sole exception of the camp
counselor. Given contact with kids, I'd like to at least imagine they would
try to background check. Even then they probably don't and rely on 3rd party
professionals.

You have to be realistic about these kind of things. If, under better economic
conditions, adults would never work these jobs and it would all be "teens
first job" then they're not going to be geared up to check references or prior
employers and they're not going to care if you leave your previous employer
section blank. You don't need a stellar resume to meet the minimum
requirements to flip burgers and if you show up with a stellar resume it
proves you don't know how to play the game and they will politely tell you
you're overqualified, until you learn to play the game.

~~~
x0x0
Your response is amazing.

Step 1 -- Let's ignore reality (low end jobs are not primarily teens anymore
[1]); the _actual quoted experience in the article_

Step 2 -- now firmly in our fantasy land, this nasty action of employers
definitely isn't a problem!

Step 3 -- therefore, nasty action isn't a problem!

Step 4 -- The aristocrats.

[1] [http://thinkprogress.org/economy/2013/08/08/2433601/fast-
foo...](http://thinkprogress.org/economy/2013/08/08/2433601/fast-food-workers-
young/)

~~~
notacoward
Looks like a pretty accurate paraphrase, except that you left out the "well
meaning advice" for people very unlike the GP to take risks the GP never would
so that the system can right itself. That's a real gem of anti-empathy right
there.

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drivingmenuts
Their food is disappointing and now their business practices are, too?

I'm really wishing the NYT had tried to get a comment from Jimmy John's
corporate before publication. I'd _love_ to hear their justification for that.

~~~
mratzloff
Here's all I really need to know about the company:

[http://www.smilepolitely.com/splog/jimmy_john_is_a_big_man._...](http://www.smilepolitely.com/splog/jimmy_john_is_a_big_man._with_the_photos_to_prove_it/)

I used to eat there pretty regularly until I saw those photos. I haven't ate
there since.

~~~
jackmaney
0_0

Fuck...I've eaten there fairly regularly myself. No longer.

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johnward
I'm hoping that companies pushing non-competes to workers at this level causes
some discussion around non-competes at national level. Hopefully, as a
country, we will treat non-competes more like CA does.

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krigi
I've been under non-competes before. I've just ignored them. Most of them are
unenforceable and in cases like Jimmy John's are just another form of
harassment.

~~~
aroch
Hell, many places will release you from a non-complete if it gets you to fuck
off faster after being let go. Non-competes aren't really about punishing
after you leave, they are there to "encourage" you to stay.

~~~
johnward
I'm not at a high enough level that I think an employer would actually try to
enforce a non-compete but the fact that I signed something that says they
could still scares me.

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DanielBMarkham
This got a little too typically NYT generic and preachy at the end -- I was
expecting either an altar call or somebody to pass a collection plate -- but
the specific case about non-competes deserves some attention.

For all the things California is doing to drive out businesses, one great
thing about the state is that non-competes have very little weight. (In fact,
this was what led Google and Apple to screw over the tech industry for many
years, but I digress). The measures are very rarely enforced even in states
that do support them. What with a new load of state legislators coming into
office over the next few months, fixing non-competes in those other states is
an easy win that could increase the state's competitiveness.

~~~
VLM
"The measures are very rarely enforced"

Don't get into an agreement you're not willing to enforce... lets be
realistic, the victims are judgment proof, if they lose, the company might be
able to repo their hat or apron, that's about it.

Most likely result is if you quit and tell your boss you're going to a
competitor of any sort in the food service industry, you won't get your last
pay check. It'll cost too much to get it, so corporate wide its free money for
the company across the large set of all employees.

~~~
ceejayoz
Attempting to withhold a paycheck for hours worked will get the Feds involved,
for free, very quickly.

~~~
x0x0
1 - not so quickly as all that;

2 - particularly if you don't know how to work the system, where to file a
complaint, or how to get help;

3 - still a problem if you don't have the money to wait for that paycheck to
show up for months or years

~~~
danielweber
It won't be "months or years." If you worked hours, the state will tell the
company to pay you for that, _now_. Even if they are bankrupt.

~~~
x0x0
To introduce some actual evidence: No.

In California, there's a fairly straightforward process, assuming you go
through the CA Labor Commission instead of a lawsuit. If the employer contests
your claim in any way, it basically takes at bare minimum 6 weeks to complete,
and often longer. A normal timeline, in a contested case, would be bare
minimum 8 weeks until cash in hand. Longer timelines are typical. You may read
a description here:
[http://www.dir.ca.gov/dlse/howtofilewageclaim.htm](http://www.dir.ca.gov/dlse/howtofilewageclaim.htm)

~~~
danielweber
I missed the evidence.

California law provides for penalties payable to the employee, giving him his
daily wage for each day the last payment is delayed.
[http://www.dir.ca.gov/dlse/faq_waitingtimepenalty.htm](http://www.dir.ca.gov/dlse/faq_waitingtimepenalty.htm)
It typically isn't worth trying to dick over your old employee.

~~~
x0x0
experience and the timeline in the pdf I linked

You responded with the law, and a bunch of idiocy. Oh, it's against the law to
dick over employees? Well then, it never happens -- case closed!

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wmf
I wonder if this is related to companies' refusal to hire full-time employees.
If you only hire an employee for 20 hours per week, obviously they're going to
need two _other_ minimum-wage jobs... which may be at your competitors. I
heard a story (which may or may not be true) about a guy who worked part time
at Home Depot and part time Lowe's.

~~~
vampirechicken
Could also be used prevent your competition form poaching your workers for the
buck an hour more that you're not willing to pay.

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lotsofmangos
Welcome to the Corporate Logocracy. Please enjoy your stay and note that by
entering you agree to submit to mediation in the case of a dispute.

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pnathan
I had a 6-month non-compete-ish agreement at a taco shop in 2007. I couldn't
take the taco recipes to another taco shop within the nearest `n` miles. Kinda
lulzy at the time...

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brianbreslin
Its amazing how fast Jimmy John's has been expanding too. They seem to be
popping up all over florida now.

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bsbechtel
The article has a pretty obvious slant in one direction. A lot of times small
businesses will require this of their entry level workers not because they are
afraid of their workers going to a competitor, but don't want their employees
to go and start a competing business, which in the small business world is a
very real risk. It costs much less to start a small business, and in the local
market many of these small businesses operate in, a new competitor can take
away a big chunk of an already small pie. If that competitor did so by
stealing your business practices, then congrats, you are putting yourself out
of business. I'm not necessarily saying this is wrong or right, but it's the
other side of the story the NYT didn't discuss.

Ironically, I worked for JJ in college, and never once did this ever concern
me. This may be my personal bias, but I think the NYT is trying to make
mountains out of molehills here. There are much bigger contributing factors to
low wages for fast food restaurant workers, such as illegal immigrants
depressing wages, limited ability for workers to organize, and perverse tax
incentives that prevent profits from working their way down the economic
ladder.

As a side note, JJ pays better than a vast majority of fast food restaurant
chains. Their in-shop workers are paid above minimum wage (average around
$8.50), and it's fairly easy to move into a delivery driver position where you
can earn $25/hr on Fridays and Saturday nights.

~~~
tptacek
I am confused by what appears to be an assertion that Jimmy John's has a
legitimate concern that their minimum-wage-earning food service employees
might leave to start a competing national sandwich chain.

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benjohnson
Devil's Advocate:

It's certain that Jimmy John's line-worker can't start a 2,000 store chain,
but they could run off with some of the catering business.

~~~
bsbechtel
Jimmy John's competes with every local restaurant in every local market where
it operates. Someone can easily start a local business that cuts into the
market share of one of its local stores, although yes, it's very unlikely that
restaurant is going to overtake Jimmy John's nationally. And yes, many local
businesses, especially restaurant businesses, are started by former employees
who enter a field to get training, but one day want to open their own
business. It's obvious many of the comments (and my downvotes) here are from
individuals who have never ran, nor worked in, a business that operates and
competes on a local scale.

~~~
johnward
I didn't up or downvote you but from my perspective I don't feel that
employers deserve more protections. If I want to run off with the secret
recipe it's already protected by IP laws. I think it should be illegal for an
employer to limit your future employment in any way. I'm not saying the
restaurant industry isn't competitive, it's probably one of the most
competitive I can think of, but limiting employees rights is not the right way
to handle that.

~~~
bsbechtel
At JJ, it was more about operational secrets that can't be protected by law.
However, I mentioned in my original post that I don't necessarily think it's
right or wrong, it's just why JJ does it.

I generally agree with you that limiting future employment is generally not a
good thing, although I'm not convinced getting rid of non-competes in minimum
wage jobs would materially affect wages. At most, it might prevent someone
from taking a manager position at Subway, but I don't think it is going to
raise the overall wages of restaurant workers.

~~~
tptacek
Jimmy Johns is a franchise operation with tens of thousands of employees.
Their retail workers do not have access to meaningful "operational secrets".
It wouldn't matter if they did, either: trade secrets can be protected
directly without noncompetes.

