
Enslaving your interns for evil and profit - tghw
http://bitquabit.com/post/enslaving-your-interns-for-evil-and-profit/
======
jerf
The capstone course at my university, like many others, was to be matched up
with someone in the community and be given an actual task from their business,
usually with the understanding that we were likely to produce such crappy code
that it was going to be discarded anyhow. (Which was broadly accurate.) My
group happened to draw a lawyer's office, which wouldn't have necessarily been
a problem, except their first move was to get us a to sign a heavy-duty
nondisclosure agreement.

The prof brought this to us, and asked us if we were willing to sign this. My
teammates were like, "uhhh", and by that point I'd been reading up enough on
legal issues on the internet that I simply said "No." At which point my
professor said "Yeah, I was just curious what your reactions would be. I was
never going to let you sign these. Here's your new project...."

And forget "intern", we were pay _ing_ for this course! It's amazing what
papers people will push at interns and such.

If you're in that position, do not be afraid in the slightest to say no. One
of two things will happen: They'll retract their request, or you'll get out of
a bad situation before it turns really bad.

~~~
jergason
A NDA is a much different beast than a non-compete clause. I have signed NDAs
to work on school projects before, but that did not really affect anything I
did outside of the class project. I don't think an NDA would close off any job
opportunities. The subject of the article signed a non-compete clause, which
prevented him from getting a good job opportunity. I don't think those have
much in common.

~~~
jerf
You're right in general, but not in this specific case. The NDA was _so
strong_ that if read as written it basically forbade us from ever using
anything we learned with them, for any purpose, ever. It did _not_ narrow
itself down to internal operations.... which we would not have been privy to
anyhow! We weren't going to be sitting in on trials or hearing about their
cases anyways. It was almost stronger than what you would consider a
"noncompete" in that sense.

And since it was a lawyer's office we were little inclined to assume they'd
never exercise their claimed powers.

And again, we were pay _ing_ for this course, not being paid. (In fact their
"due consideration" clause alone was a bit amusingly handwavy. It was nearly
"for the due consideration of being graciously allowed into their presence to
bask in the glow of their wisdom.")

------
_delirium
I'm curious how this even came up. Did the prospective employee make the
mistake of actively asking the former employer for permission? Not many
companies are monitoring their former interns closely enough to even notice
where they end up later. Even if they did look, they wouldn't typically hear
about it until past the interview stage, unless I'm missing some reason the
interview invitation would be publicly accessible.

A non-lawyer guess at a reasonable course of action: Unless you're a high-
level employee with particularly sensitive knowledge, it's probably not a good
idea to try to pre-clear future employment with the former employer. That just
gives them an excuse to over-interpret the scope and tell you "no". Instead
it'd make more sense to evaluate compliance yourself, and if in your judgment
the job doesn't violate your agreements, go ahead and take it. No reason to go
out of your way to even tell the former employer about it; the odds are
heavily against them noticing and caring enough to sue a low-level employee.

~~~
gecko
The candidate withdrew his application, citing his noncompete. I followed up
with him to verify there wasn't a misunderstanding, and he forwarded an email
with his employer saying there wasn't.

~~~
microarchitect
I know this is not the point of the post, but how confident are you that this
was the real reason he declined?

This non-compete sounds rather unenforceable to me.

~~~
ajones05
They rarely are, especially in california. My guess would be the same, that
there was some other reason and it was more of an excuse. Maybe he wanted to
show loyalty to the other company.

~~~
LaGrange
He was scared. Just like that. You know all that, but when you face a lawyer
or an experienced abusive superior, it's hard to be reasonable. Especially if
you're not experienced in dealing with people like that.

------
jeffreymcmanus
This doesn't help much unless they name the company. If companies that do this
are named and shamed, it will tend to happen far less frequently.

Also worth bringing up that this kind of thing is illegal in California. If
you're wondering why Silicon Valley sprang up here instead of somewhere else,
California's extremely worker-friendly professional code is one reason why.

~~~
Natsu
I believe it's actually unenforceable, rather than illegal. The difference
being that California courts will refuse to enforce the contract, while if the
contracts were actually illegal, they'd punish companies for asking people to
sign them.

I've heard that some companies still offer them anyhow, hoping that you won't
know they're unenforceable and will obey it anyhow. I also seem to remember a
case where a company sued to enforce the non-compete in a non-California
court. I don't know how that played out, exactly, and that case might still be
pending, but the plaintiff seemed to think that another court might enforce
the non-compete even if California's courts wouldn't.

~~~
tzs
They are void under Cal. Bus. & Prof. Code § 16600.

The California courts have decided that California's policy against them is so
strong that when California is applying another state's law under California's
choice of law rules, they will be treated as void even if they are acceptable
in that other state's law.

(A lot of people don't realize that courts will use law from other states when
appropriate. For example, if you and I enter into a contract in Washington,
and then we get into a dispute over that contract in Nevada and one of us sues
the other in Nevada, the Nevada court will apply Washington contract law. It
will use Nevada rules of civil procedure. I don't recall, but I think it uses
Nevada rules of evidence, too).

There's one unsettled situation, I believe. That would be where we have a non-
compete, and it goes to court in a state that enforces non-competes, and
plaintiff wins, and then plaintiff tries to have the judgement enforced in
California. The Full Faith and Credit clause of the Constitution would seem to
require California to enforce the judgement, assuming that the other state's
court had personal jurisdiction over the defendant when it ruled. (States
generally have to enforce judgements from other states, even if the case would
not have gone the same way under their law).

~~~
mahyarm
So if someone signs a non-compete in Washington, it's practically null and
void if they go move to California for a job in California? What if they move
back 3 years later to Washington and the non-compete was for 1 year?

~~~
jeffreymcmanus
Contracts generally have a clause that indicates which state's laws they
follow. If you go to work for Microsoft, your non-compete will say that the
contract is enforceable under the laws of the state of Washington. You can't
escape it by vacationing in California or even by taking a job there.

~~~
tzs
If you have a non-compete with Microsoft, and the terms of the non-compete say
Washington law is to be used, and you take a job in California, and Microsoft
sues _in_ _California_ , California's strong policy against non-competes will
apply. Those parts of the Microsoft contract will be treated as void by the
California court. Whatever remains will be interpreted using Washington law as
construed by the California court.

------
gamblor956
Non-competes are not enforceable against non-exempt workers (i.e., hourly,
part-time, or independent contractors) in most states, but especially in blue
states.

In some states, including California, non-competes are not even enforceable
against full-time, fairly high-level employees.

You or the intern needs to talk to a lawyer, b/c it sounds like the NLRB
should be having a chat with the potential employee's former employer.

~~~
larrik
Forget about a lawyer, the intern should call the state's labor board.

They'll cut them down to size for _free_ and be thrilled to do it.

Seriously, I often see advice on HN to lawyer up over an employee
disagreement, but your home state's government probably already has a ton of
people waiting to jump all over that situation for you. The laws are so
employee-friendly it's often pretty unfair.

~~~
mcknz
Even if the intern is justified in doing so, taking legal/regulatory action
might not be the best way to start a career. A company this unreasonable may
actually enjoy personal and professional destruction.

~~~
georgieporgie
Downvoted for spreading FUD. Software development is a vast enough field that
you can't be possibly be blacklisted.

~~~
Retric
Beyond that, I would be more likely to higher someone who stood up for
themselves in such a situation.

------
Sukotto
If what I'm doing is so sensitive that my employer makes me sign a non-
compete, they have to agree to pay me for the duration.

Then it comes down to just how valuable they think your experience really is.

I encourage everyone to negotiate a time limit and compensation into any
employment contract that includes a non-compete.

~~~
0x12
Excellent advice, really.

When you give something you should get something in return.

------
impendia
You seem to have taken some pains to not tell us who the offending employer
was.

May I ask why? Perhaps I am being naive, but if there is any reason to not
publicly shame them here and now, then I don't understand it. Indeed, this
would be very helpful to college students who got offered an internship here,
googled them, and then found your blog post.

------
steve-howard
Microsoft does make interns sign non-compete contracts. I have mine in front
of me. It's much tighter in scope, however; I can't work on the same thing as
I either worked on or learned confidential information about at MS for 6
months after employment. Not at all as bad as the one in the article, but not
the worst.

~~~
dangrossman
I distinctly remembered the intern employment contract including a non-compete
clause (with a 1 year duration) limiting work on any competing product or
project (rather than entire employers).. but I didn't have a copy of the
contract to check so I withdrew my comment.

------
mhp
This is absolutely ludicrous. Non-competes for interns? I hope the company he
worked at isn't in California where their non compete would be void.

------
brianbreslin
man i wish college kids were given more training before diving into an
internship from the what to expect standpoint. This could be a 20 minute class
at their career centers in college: these are the X things you need to know
(you are not expected to work 100 hours a week free, don't sign Non-Competes,
do ask for letters of recommendation, etc).

~~~
kbatten
Internships are supposed to be the real world training though. It seems highly
unethical for companies to take advantage of interns because by definition
interns are inexperienced.

I had great internships and never felt like I had to be vigilant that the
company was trying to take advantage of me, so I could spend my time learning.
Its unfortunate that you are most likely correct that colleges should now be
informing their students of things they need to avoid or deal with like this.

~~~
brianbreslin
I did a handful of internships in college, mostly irellevant to my current
career and was fortunate to never be taken advantage of. i know many people
who unfortunately were.

------
larsberg
I suspect the intern was using that as an excuse to go somewhere else.

Usually, when this situation occurs, the prior firm's lawyers immediately send
a notice of intent to file an injuction as well as a statement that the new
firm must retain all data pertaining to that hire, as they may be required to
disclose it at a later time.

My wife is currently going through a non-compete negotiation, and she and most
of my friends work in the finance industry here in Chicago, where this comes
up for almost _every_ employee who does decent work and tries to change
employers.

------
nandemo
My previous company did something sneakier. They didn't ask us to sign a non-
compete, they made an informal agreement with its clients and vendors not hire
any of us.

Now I have 3 years of experience in this specific field but, after being laid-
off, no company in the field will hire me.

~~~
lurker19
You are unemployed and the victim of a crime. You are perfectly positioned to
take some time to work with a lawyer to make the world a better place and make
some money from your troubles.

------
ajaimk
It's a good thing that Non-Compete's aren't enforceable in certain states.
California for one.

------
mikeknoop
I found this awesome explanation while searching for more information
(specific to Missouri):
<http://www.mobar.org/journal/1998/mayjun/corrigan.htm>

------
run4yourlives
IANAL, but odds are that this "agreement" would be ruled as non-enforceable by
most reasonable courts in the US.

It's not like the guy was VP of software development. He was an intern. The
whole reason he has the job is to presumably transfer the things he learns
into various other roles.

[http://www.heydary.com/publications/non-competition-
agreemen...](http://www.heydary.com/publications/non-competition-
agreements.html)

Both you guys should completely ignore the non-compete and see if they try to
enforce it. That's a lot of money for the loss of an intern. :-)

~~~
wanorris
If I were the intern in question, I would have withdrawn my application rather
than proceed like that. I would never want to create an adversarial relation
with a current or former employer unless they left me with no other
alternative.

It would suck to lose a shot at a great job, but I think it's worth the loss
to maintain a reputation as a loyal team player (even if the employer seems
unworthy of loyalty) and move on to a more worthy employer when I can find a
way to do so that won't raise their ire.

I would draw the line in situations where being a "team player" would require
me to act unethically, but in the absence of something like that, I think that
over the timeframe of a career, there is net value to being someone that
former employers and coworkers recall positively rather than negatively.

------
erikb
After being an intern for 5 years of studying I hoped to get some tips, how to
become the slave master now that I have pocketed my Master's finally.

------
fab13n
In France, such conditions are enforceable... if you pay the guy an indemnity
essentially equal to his former salary * duration, for doing nothing instead
of working for the competition.

This ensures that such clauses are only enforced when it _really_ makes
business sense. But they're often included in contracts anyway, because many
employees ignore that they're unenforceable.

------
dblock
I second the recommendation in the post - don't sign a non-compete if you can.

A past employer introduced a non-compete half way through my employment. Most
engineers ignored repeated HR requests to sign it. I had a few 1:1 discussions
with my boss during which I stared with a blank look. Then I just asked: "Have
_you_ signed it?" - I was never asked again.

------
ig1
While I agree with the spirit of the post, some of it's is a bit inaccurate.

FogCreek did used to run a job board (it was actually created by a FogCreek
intern). When Stack Overflow's launched it's job board FogCreek's job board
was merged with it in order to give Stack Overflow's board some traction (Joel
Spolsky is a co-founder of both companies).

------
theycallhimtom
I don't understand why a company would choose to enforce a non compete in this
situation. The main reason for having interns is to hire them once they
graduate. I doubt Bob would consider working at that company again. So the
company loses a potential employee and gains nothing.

------
rdl
If he's still looking, there are a bunch of California companies who would be
happy to hire him.

------
darksaga
I've signed them when asked and have only been brought into court once. The
judge threw the case out in under 10 minutes.

On short, you can't keep someone being gainfully employed simply because you
signed a non-compete clause.

------
alexsb92
Is there any precedent in the US of a non-compete being anti-constitutional?
As far as I know, most non-competes were determined anti constitutional, as
you can't force someone to not get a job. The only time they'd still be
viable, would be in the type of examples that OP gave.

~~~
evan_
not really sure how that would apply- the constitution exists to define the
powers of the government, and a non-compete contract would be a civil matter
between a company and an individual.

~~~
jeffreymcmanus
Any civil matter can also be regulated (regulations can apply to anything,
really). But in a practical sense, regulations pertaining to business and
professions like this are handled by the states, while the feds really only
get into it when it's a matter of worker safety, taxation, those kinds of
things. This is why you can laugh at a noncompete in California, while up in
Washington, Microsoft gets to own its employees' dreams for years after they
leave the company.

Non-competes are so unbelievably worker-hostile that they should really be
outlawed everywhere.

I really like the idea of forcing the employer who's enforcing the non-compete
to pay full salary for the duration of the non-compete. It seems only fair
that if you're trying to keep me off the market because I'm so potentially
devastating to your business that you should pay for the privilege.

------
earl
Benjamin's article is bullshit. The only way to deal with crap like that is
name and shame, so that the next time a prospective employee googles the
company they notice that they have a habit of fucking employees.

Personally, since Fog Creek is also in nyc, I'm guessing theladders.

theladders is in nyc, indeed is in austin/bay area, simply hired is bay area,
I'm not sure where dice and monster are

~~~
mhp
No, they are in Maryland. I don't care about naming the company. I care about
putting the kid in a bad position.

~~~
earl
Said kid is already screwed. You now have a choice: either the next time a
prospective employee or intern googles the offending company your blog comes
up as a warning, or it doesn't. Which do you think will be more effective
preventing behavior like this in the future?

Imagine this post title: "X screwed an intern out of an awesome internship at
fog creek" rather than a vague warning to interns not to sign noncompetes.

~~~
droithomme
It's not the specific company that is the problem. It's not like they are the
only ones doing this. The problem is the practice in general.

Not signing noncompetes isn't a vague warning, it's very specific. I would
extend it from interns to everyone other than senior sales staff.

------
rorrr
You're asking interns to write a garbage collector during the interview?

~~~
praptak
Why not? Any decent CS course covers garbage collectors. It should be a matter
of presenting a known algorithm in pseudocode. Unless they expect the
whiteboard code to compile and produce a fully working garbage collector.

~~~
blahedo
> _Any decent CS course covers garbage collectors._

In the required core? I'm not so sure that's true. The concept of garbage
collection, yes. But garbage collection algorithms would usually be presented
in courses like PL or maybe compilers, that are often in the "take 2 of 5"
list or maybe even in pure electives. (This is true of a lot of "important" CS
"core" algorithms and concepts---every CS department includes them in offered
courses but the requirements are usually structured so that not all CS majors
will be _required_ to take them.)

~~~
arethuza
It was certainly true of the CS course I did in the 80s - as part of the
second year (of four) Data Structures and Algorithms course we spent a lot of
time looking at memory allocation and garbage collection. This was a
compulsory course - even those folks doing joint degrees had to do it.

I'd be amazed if a CS course didn't cover this kind of stuff.

~~~
blahedo
Well, it's hard to argue against your 25-year-old personal experience and your
amazement.

Less snarkily: I teach university-level CS, and of the five schools I've had
direct involvement with (as student or faculty), all covered GC algorithms
_someplace_ but I think at least four of them, maybe all five, had at least
one path through the major that would avoid covering them. I have researched
the situation for certain "core" topics other than GC at dozens of top CS
schools and I can promise you that there are many topics that are widely (and
correctly) viewed as very important to CS but are not required even at many of
the best schools.

~~~
arethuza
My comment was intended to demonstrate that 25 odd years ago these things were
covered in a non-optional way when the were regarded as fairly esoteric. Today
when a lot of mainstream languages have them you'd think a CS course would
cover them!

Note I'm in the UK and degree courses here are, as far as I can tell,
structured rather differently to those in the US. When I did a CS course the
classes required were 80% fixed by your choice of course - there was no
flexibility or modularity in the first 3 years, with only the final year
allowing for selection of classes. There was no way to graduate without
passing the class that included GC algorithms.

Of course, it wouldn't surprise me if this kind of approach has been made more
"flexible" to make courses more "accessible".

------
lojack
Non-competes don't prevent you from working at other companies. They only
prevent you from actively pursuing work elsewhere. If you signed a non-compete
for working on the iPhone you would be allowed to accept a job at HTC, but you
couldn't go "I work at Apple and know all their secrets so hire me!"
Additionally they can't prevent you from finding work. If you had a very
specific expertise on phone antennas, and you had a non-compete for working on
the iPhone, the contract would virtually have no relevance.

