Hacker News new | comments | show | ask | jobs | submit login
Noncompete Clauses: Signing Away the Right to Get a New Job (nytimes.com)
662 points by mikeh1010 9 months ago | hide | past | web | favorite | 385 comments



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 interest, or 2) because it'll keep you from looking for a new job, and they think you're too naive to argue.

Here's my suggestion. When you receive the document, read it and see if there's a noncompete clause. If so, you're going to want to send a redlined version back to them, changing the noncompete duration from "during and for 2 years following employment at the company" (or whatever they gave you) to "for the duration of employment at the company." By doing so, you show your willingness not to do any kind of work for a competitor while employed, while very clearly pointing out that you do have the right to get a new job. It may be important not to offend the person who wrote up the agreement and included something so ridiculous, so the minor nature of your modification will allow them to save face.

In the end, most employers won't bother to argue the second point, and the ones that do are probably shadily taking advantage of you in other ways.

Additional note: in California and several other states, these clauses are not legally enforceable anyway, and you should mention that when you give them the "fixed" agreement.


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 unmodified or GTFO." I don't know who all you Captains Of Industry are who have the power to negotiate these things, but I've found employees basically have no ability to change them.


As a contractor, I've seen these before - and more frequently, the indemnification clause. I've always just sent a apologetic but firm email saying that I cannot accept those clauses and they always get removed without any drama or handwringing.

Admittedly I'm on the upper end of the experience scale, but I think there's a lot more wiggle room than most people realize. Also, this is a pretty decent litmus test for an organization - I would avoid companies run by their legal departments.


>> 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 your approach. Surely the odds of success must improve - if only slightly - by simply pointing out undesirable clauses and requesting that they modify and reissue the contract to accommodate, rather than striking it out in red ink yourself and shoving it back in their faces as an ultimatum.

The former tactic de-escalates the issue to being a reasonable request from a respectful person, while the latter comes across as coming from an immovably stubborn personality who may bring a habit of causing drama into the company. Better to politely identify how the employer can effect a positive difference on your end, rather than railing against the company's policies with your demands before you've even been hired. "My way or the highway" doesn't sound very amiable.

How often do companies reject red-inked contracts, not because they are unwilling to amend the contract, but because their intuition has triggered them into avoiding your coarse methods of getting what you want? Seriously, this is quite eye-opening. You've made me rethink my negotiation phase. I will be unapologetically thieving this diplomatic approach for my personal use in the future. Thank you!


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 that are very favorable to the employee - most contractors here will countersue in a labor court if the client try to enforce this kind of clause.


You may not have understood my "eureka" moment.

It's better to politely request that the "undesirable" (ie: illegal) clauses be removed from the contract, rather than using red ink on the contract you were sent and submitting it as an ultimatum. Either way, you wouldn't work for them unless the changes are made. The result is the same; it's all about how you approach the matter - namely, with diplomatic tact. You give the company a chance to amend the contract in your favour on their end, rather than attempting - and possibly failing - to force their hand with a revised contract on your end.

You might be in a region where such clauses are not enforceable, but if you say "hell no that's illegal!", they'll trash your résumé and hire someone else who doesn't make such a fuss. The person who winds up being hired was just a "better match" and the "position was filled". You could always sign a contract with "unenforceable" clauses without complaining, and hope the law ultimately agrees with you... but do you really want to take the risk of falling on the wrong side of the law?

Put it this way: if you strike out the contract with red ink, here is what the employer sees: "Fuck you, you can't fucking give me fucking clauses like that. It's fucking illegal, so I have fucking stricken out that fucking bullshit clause 2.1, and you had better fucking accept me as a fucking employee anyway, you fucking pieces of fucking shit! Accept the fucking contract I have sent you with fucking red ink, and fucking hire me already!".

Versus: "Section 2.1 would prevent me from seeking employment upon leaving your company. That clause is not legally enforceable, so it would be better for both of us that I not sign this. I will sign a contract with provisions that I will not poach your clients or work for a direct competitor in your field for a period of X time. If you could please revise the contract, I will sign it and you will have me as your newest employee!"

So what if you calmly request these changes be made, and the company refuses to make the amendments to your contract? Of course you refuse to work for them. Maybe even sue for their illegal practices if you can afford the legal fees. The idea is not to accept unacceptable contractual terms. The point is to allow the company to believe they are accommodating your polite requests, rather than you having made non-negotiable demands as an ultimatum. It's a mind game that gives the illusion that the company is is control, while you hold all the cards.

The end result is the same. Either you will accept the contract or you won't. You're just being diplomatic, attempting to elicit a reaction from the employer that is in your favour, rather than making the scenario a one-sided "my way or the highway". Let the company believe they are obliging you instead of crumbling under pressure.


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.


It may be easier for companies to change contractor contracts than full-time employee contracts. The latter is likely to be much more standardized (and companies may generally demand more conformity from FTE's).


It depends of the company, its size in particular.

In a big company the manager wanting to hire you might not have the power to overrule the legal department. In a smaller company however you might get hired by the CTO or CEO himself, the contract has been written by a contractor lawyer and if we wants you he'll change the terms.


I have ~10 yrs exp. Till date I have got non-competence clause 4 times, of that I removed the clause 3 times and did not sign the time they refused to remove it.

I just explained my case logically, respectfully and directly (face to face) to my line manager. My case was:

- Its understood that I will not work a second job. Though I will volunteer for some charity.

- Considering my domain expertise, I am more likely to get a job in a similar domain. If my future employer demands me to implement the same tech as my pervious employer, its a red flag that this company is clueless and will sink soon. If I volunteer the details of my previous companies operations, it just means that I am untrustworthy and I will not be trusted in the new company. So sharing details of my previous job is a bad idea.

The 4th company manager was not even willing to discuss with me about my agreement and wanted me to go to the legal dept directly. That was clear sign that this was a very bureaucratic and not suited for me.

Of course, I have only worked in small to medium sized company and they was no secret algorithms worth in the millions or billions involved. That I am sure is a different case, like the current Google vs Uber over the tech stolen by Otto from Waymo.


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.


Corporate legal departements try to pull the same thing with B2B contracts, but in our experience almost anything can be changed if you stand your ground.


B2B contracts are different, though, because they are effectively between equals, in a way employment contracts are not.


The legal department usually tries to tell us differently and gives the same kinds of arguments as they would give for the 'non-standard' employment contract. "You are only a small company and every other company accepts these conditions". "Only manager X of small department Y wants to do business with you: we won't change our conditions just for them". "The contract is only for few$, we can't do specials for that". But in the end the wishes of someone in the business are more important and conditions can be changed to satisfy both parties.


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 everything except salary/benefits.


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."


Agreed.

When contracts are redlined in any way, even relatively small companies have procedures in place to require review by the legal counsel. As soon as you introduce lawyers, the delays kick in and nobody is happy.


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 my time than usual, they'd better be paying me at least 4.2x a normal full-time salary.

I do have a little experience with making changes to contracts that the other party doesn't want to change, and to that end I'd like to add two more things. First, it's likely they'll use the phrase "standard contract" and say that it just can't be changed. Second, if you've gotten that far, it's quite likely they'll change your minds if you stick to your guns. It's tempting to cave in when they say "sorry, we can't accept changes," but don't.


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 first job, you may have to make concessions - for some folks, "if you want a paycheck, sign here" is a reality.

If nothing else, it is very important that you keep the right to move up and out to a new job. That's the point you should focus on. In a realistic full-time first job, you're not going to work for a competitor at the same time, so it is fine to tell them you won't if that helps the two sides reach agreement.

Good point about not taking "this is the standard agreement" for an answer. That's not good enough. Say you understand that it's a boilerplate legal document, and you'd be more than happy to give them a couple days to double-check your proposed change with their boss, counsel, or whoever they need to. Again, be firm while giving them an avenue to save face, and wait for them to call back with a sudden change of heart.


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.


> But the problem is that they could just do that anyway, illegal contract or not.

The difference is that with an illegal contract, your future employer might actually believe it's more headache than it's worth to fight. I would err on the side of casually striking it out of the employment contract, simply saying "this part of the standard document doesn't apply in our state" etc.


Your new employer doesn't have to fight anything. Non-executive non-competes are specifically disallowed by the CA gov't. It's up to your previous employer to prove you were an executive (upper management/c-suite) and sue you, not vice versa.


But then you have to deal with a lawsuit, hire a lawyer, etc. Just because it's unenforceable doesn't mean that your shitty employer can't sue you. Why not just head it off at the beginning and have it right there in the signed contract?


You don't necessarily need to hire a lawyer, but I've always found this to be one of the pains of the American costs system.

On the other hand, a court can't really order you to work for the company, so even if by some miracle they were successful, it'd come down to a matter of damages, and those would be difficult to prove even if you went to work for a direct competitor.


It'd be thrown out immediately anyway, due to having no legal basis (at least in the mainland European civil law systems)


California doesn't have a mainland European civil law system.


The plaintiff pays costs in these cases (filing fees, motion fees, etc) and, if it gets thrown out (most likely, as it would be considered frivolous)/you win, you owe nothing. It's really a stupid action for a company to try and take.


They're not "notoriously difficult to enforce", they're specifically unenforcable to non-executives. The CA legislature and judiciary have long since settled any questions regarding these and also have frameworks in place for companies trying to make you an "executive engineer" or "director of blah" to try and get around it.


Beyond that, not just the clause is unenforceable, it invalidates the whole contract.


Invalidating the whole contract is not good. You still want to get paid and get all the other benefits from the contract.


Isn't there usually a clause at the end stating that even if some parts are unenforceable, the rest of the contract still holds?


Yes, typically, there is a 'severability' clause that encodes that.


Wouldn't that clause be voided too?


The severability clause is what keeps illegal clauses from invalidating the whole contract.


Yes, and CA really doesn't want non-compete clauses, so they invalidate the severability clause as well.

By the way, the Silicon Valley HBO show can be remarkably accurate on things. It's rare that a TV show gets things like this right, where people in the business don't.

I just happen to know lots of attorneys in the space. I am not an attorney or giving legal advice. Talk to your attorney for that.


What if the law changes out from underneath you? Better not to have it in the contract at all.


Be careful. You might have trouble if you later move to another state and keep your job. Or if California changes its rules.


Same here in Taiwan. Court has ruled more than once that non-complete cannot be applied to any employee who is not top-level executive.


Wasn't this a plot point in Silicon Valley?


Yes it was. "Silicon Valley" is a series about a start up, for anyone that doesn't know.


> "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 paying you to spend 40 hours a week learning about the key problems in their industry and designing and implementing solutions, and then a competitor hires you for 10 hours a week to re-implement those solutions (not paying for the learning/designing phases). So the competitor is getting the benefit of work you're doing that in some sense should belong to your main employer.

There might be something better than a non-compete clause for that sort of scenario, I just don't know what it is.


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 employed by the company - isn't typically necessary.


Noncompetes are very common in finance because employees will gain access to proprietary knowledge (trading algorithms, signals, clients, strategies) that by definition have very high short-term (months to a year) value to a competitor.

Confidentiality doesn't work that well because proving that a former employee disclosed proprietary information is very difficult.

However, the ex-employee is generally paid at full salary for the time that they're unemployed, which seems like a very fair arrangement all around.


Usually when they really give a shit about the non-compete in finance, there's a term contract.

My friend did commercial banking. He had a one year non-compete, but it was geographically scoped, and he also had multi-year contracts that protected him from layoff. They needed to release him for specific causes, buy out the contract, release his contractual obligations, or some combo.


Another model I've seen is that everyone gets a blanket noncompete, but when the employee leaves, the business and legal folks get together and decide whether they really want to pay for the person to be unemployed.

Usually it depends on the exact new position, whether it's at a direct competitor, how senior the person was, etc.


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.


However, many software firms have no issue with selling the development of a feature to customer A, and then selling a license for said feature to customer B. This is the same situation as selling the skills acquired at employer A to employer B. Why is it ok for employers to do this, but not for employees?


> Why is it ok for employers to do this, but not for employees?

Why is the politico-economic system called "capitalism" and not "laborism"?


It is much more than that. An employee sells not skills, but time of his life, the only one he's got. A company can make million sales, an employee can't work a million jobs.


If I'm implementing literally the same stuff at the same time then I bet that's a massive copyright violation.

You have to take pains to avoid contamination when reverse engineering a product, for example, and that doesn't even involve the original staff.

Seems that your argument could also be used to justify lifetime noncompetes. If I work for a company, gain experience, then go work for another company, they're getting the benefit of all of that experience without having to pay for the years it took to obtain it.


But your next company is getting your prior experience, which becomes more out-of-date every day, not your up-to-the-minute experience on what might be an actively competing project.


doesn't negate the problem stated as whatever the experience is, it's value is non-zero. Hence the benefit to later employers is also non-zero (could be argued) at the cost of earlier employers


the problem is more specific than the second employer getting non-zero value. It's getting ongoing value, under the table, direct from a present competitor -- harming the relative competitiveness of the first employer.

The value of this, of course, depends very much on the specific industry and project. It doesn't really matter if your guy who builds generic websites for your clients also builds generic websites for a competitor's clients. That doesn't materially hurt the first employer. But it can matter a lot if your guy who you are paying to develop cutting-edge algorithms is deploying those algorithms to the competitor you're trying to beat. Instead of gaining an edge worth $X per year, your company instead gains only part of that advantage because at least one competitor is cutting into it.


There's a huge difference between double dipping and signing away your right to work. Why is common sense in such short supply?


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


>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.


Donald Trump gets paid more than enough to be considered to be on the clock 24/7, and it's generally understood that this is the nature of that job.


Well, as President Donald Trump gets paid a base salary of 400k. As another poster pointed out the difference between 40 hours / week, and 24/7 is 4.2x. That would mean that "more than enough" for a normal salary is $95k.


Elected official's job status is defined by statute. Money is irrelevant.

This is often a matter of serious debate. For example, in New York legislators are considered part time, so they are permitted to operate businesses or be employed while in office. This creates an appearance (at a minimum) of conflict of interest in many scenarios. Full time employees of government generally need permission by the appointing authority to do meaningful outside business.

This applies to any government employee. A janitor on government payroll generally needs permission to work for a company that cleans offices at night.


That was me. And $95,000/year is a pretty good salary. Don't forget the free room and board on top of that.


The government provides the cooks and household staff, but the president is responsible for paying for the food.


Really? Do you have a link for this?

This sounds very interesting and sort of funny. Not really sure how it works on other presidential houses, but still sounds amusing since it will probably require rules and guidelines on what exactly to deduct from the president's paycheck, no? What if the president invites someone over, in a sort-of-unofficial way but not really, do you get deducted as well? or maybe not because it was "for the job" sort of?

Definitely interested to know more.


http://www.cnn.com/2014/06/10/politics/presidential-debt/

I read about this in a book called The Residence: Inside the Private World of the White House, which was decently interesting.


Thanks!

Like I said, it does sound reasonable but apparently it does add up. From the link:

"[Laura] Bush wrote that a bill came monthly, itemizing everything she and her family owed, including food, dry cleaning and hourly wages for waiters and cleanup crews at private parties."

"There were some costs that I was not prepared for," Bush wrote. "I was amazed by the sheer number of designer clothes that I was expected to buy, like the women before me, to meet the expectations for a first lady."


And the retirement plan: ex-presidents get the same salary as the current president. Not bad at all.


Wow, is that true of vice presidents that become president for 3hrs when air force one goes offline in the middle of a national security crisis?


Not sure if it's relevant to the point, but Trump is donating his salary, Kennedy did as well, Hoover refused a salary and Washington tried to. I don't believe you can judge whether a job is 24/7 or not by the amount they pay you.


> First, it's likely they'll use the phrase "standard contract" and say that it just can't be changed.

I wonder what would happen if you said "Ah, so you're stipulating that it's a contract of adhesion. I'd like that in writing, please."

Contracts of adhesion can be harder to enforce [0].

(IANAL, and I'm not necessarily recommending doing this, but I am curious what kind of response one would be likely to get.)

[0] https://en.wikipedia.org/wiki/Standard_form_contract#Contrac...


I think the response is rescinded offer. The reasons will likely be along the lines of litigation risk, flight risk, culture fit, etc.

Not joking btw. It's rather amazing that employers who expect rational, logical decision making on the job want applicants to suspend their reasoning and good judgment when it comes to negotiating compensation and employment terms.


Especially when, if you're in a position of any authority, there's a good chance you'll be negotiating in their behalf. So they want you to make good deals on their behalf while making a poor one on your own behalf...I guess they're hoping you have really poor self-esteem?


> Not joking btw. It's rather amazing that employers who expect rational, logical decision making on the job want applicants to suspend their reasoning and good judgment when it comes to negotiating compensation and employment terms.

Which is when you move on to the next employer if at all possible.


It's the "if at all possible" part that is not easy for most job applicants. This is probably only marginally easier even for HN users with a higher chance of being in white hot job markets.


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 screwing me over? Can you please write that this is a screwing-over contract on it?".


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.


I think it would mean that it would be more likely for a court to scrutinize the terms of the contract with an eye toward whether they were reasonable and fair, rather than simply enforcing it as written.

(ETA:) This might not help very much, because in places where noncompetes are standard, a court would be sticking its neck out a little to rule that one is unreasonable. But maybe it would help a little, if one couldn't get the provision struck from the contract altogether, and had no reasonable alternative to accepting the job. (Again: IANAL, and I'm just speculating -- no one should take this as legal advice!)


Frankly I find working for a direct competitor in your off hours to be highly unethical and have no issues with employers trying to ban it in the contract. You're no more entitled to do whatever you want than you are to be employed. It's fair for you to want to work for direct competitors, and it's also fair for employers not to hire you if this is your demand.


It becomes problematic when"competitor" is "anyone making or using software". As my country does not ban non-compete clauses, the most technical thing I can safely do off the clock is carpentry.


What's wrong with it exactly? If I hired a flooring company to lay down some hardwood, I'm not going to tell them "now, don't go doing flooring for my competition for the duration of this job." What's the difference?

You're right that it's fair for employers not to hire me if this is my demand. I never meant to imply otherwise. Employers can require all sorts of terrible things. Our recourse is mostly to either negotiate or put up with it.


> What's the difference?

The difference is that you didn't spend lots of money researching a better type of floor-laying and then have the flooring company come in to lay the hardwood according to your specs. If you had, you might want to protect that secret.


Then they should protect that with non-disclosure agreements, or realise that they can't survive as a business (or don't want to) without restricting the freedom of the workers to do what they want to outside of the time paid to the employee in the form of wage.

I have little or no sympathy for businesses which insist on restricting freedom outside of those hours for which it pays me wage.


I agree, I'm just playing devil's advocate.


Is "don't put down flooring for our competition during this job" really going to prevent that?


Would you hire a lawyer who says "I'm working working for you for those hours you pay me, in my other time I'm working for the guy you're suing"?

The problem is conflict of interest, I think working for direct competitor is very unethical (of course direct competitor is sometimes vague term, but that's another discussion).


If you're just a code monkey this comparison would be correct.


This difference is that in any practical capacity if you are doing this you are almost 100% giving out trade secrets. It's almost impossible not to. Also, your analogy is wrong. It would be that you are a flooring company and one of your workers is working for both you and your competitor, and no doubt using any clever techniques or processes that you've come up with to help out your competitor.

The software industry is big enough that you can definitely find secondary employment at a company that isn't direct competitor. That you want to apparently game multiple parties for your own gain seems like a pretty terrible thing from the employer side of the fence.

Once the company I work for had an employee from a direct competitor apply for a job with us immediately after quitting. They were pretty forthcoming with offering us intel on the competitor, presumably within their contract. We still turned them down because if someone has that little respect for a working relationship with their previous employer you can be sure that they will do the same to you.

People here often like to paint the picture of the people versus evil corporations. In reality, a job is something where you should have mutual respect between employees and employers. To me and many others, this is part of being a professional.


I think "mutual respect" means that, if a company doesn't want me giving out trade secrets, then they write a clause into the contract that says "don't give away our trade secrets, thanks." Writing in a broad restriction about how I can spend my non-working hours, just because they're afraid I might do something unethical (and probably illegal), isn't respectful.


I can see that, but "competitors" is often defined so vaguely that it could apply to essentially anyone.


I think the problem is that "competitor" may be very loosely defined.


Maybe the moral issue is beside the point? Why sign something that restricts you and potentially opens you to a suit if you can get it removed?


Ah, but this is the nature of salary employment. There is no clock, so there is no such thing as "off the clock."


You raise a very interesting point. Engels said (I can't find the quote at the moment) that the time when the employee is away from work, i.e not selling his labour-power, he is useful to the employer, as the worker repairs himself and maintains himself with the wage given to him, and recharges his faculties by rest and sleep. In this way, the employee is never off the clock, he is always working for that employer in some form, readying himself for more work.

This is evident; the employer pays for the upkeep and maintenance of a machine, and in the same way he pays for the upkeep and maintenance of the worker in the form of a wage. The worker is a self-fixing machine which sells a commodity which is able to not only transfer but create value.


And while he's working another shift at another company he's getting additional training which is good for the first employer. This is all bullshit trying to argue the validity of modern day slavery.


Be reasonable. It's not slavery, nor even indentured servitude when you can quit at any time.


Some would compare it to a form of slavery, and I think such comparisons are reasonable.

"The only difference as compared with the old, outspoken slavery is this, that the worker of today seems to be free because he is not sold once for all, but piecemeal by the day, the week, the year, and because no one owner sells him to another, but he is forced to sell himself in this way instead, being the slave of no particular person, but of the whole property-holding class." (Engels)

"The slave frees himself when, of all the relations of private property, he abolishes only the relation of slavery and thereby becomes a proletarian; the proletarian can free himself only by abolishing private property in general."

The idea that you can "quit at any time" is a farce; you must then find employment under someone else in order to survive, or manage to amass sufficient capital, something which is not an option for most people, especially with family. An extreme example of this logic utterly failing is in those developing nations with sweatshops.


Disagree. Slavery requires lack of consent. If you were taken by force and sold to a master who is entitled to your labour by law, that is an oppressive situation to be in and it must be abolished. This is not the same thing as someone voluntarily exchanging their brains or brawns for a limited period of time for money.

> An extreme example of this logic utterly failing is in those developing nations with sweatshops

Poverty means making hard choices. If your choices are :

1. Starve to death

2. Work in a sweatshop

Most people would pick 'Work in a sweatshop'. Nobody who has the choice to work in a sweatshop or be a doctor is working in a sweatshop


> If your choices are : 1. Starve to death 2. Work in a sweatshop

Then it's not a choice. Therefore there can be no consent, you are not made to work by force but by threat of starvation or homelessness, it is an oppressive situation even if these people don't have literal chains at their feet.


If the employer created a famine to help recruit cheap labour, I agree, there is no consent


Why is whether the employer created it or not relevant? What matters is the fact that the employee is forced to work, or to starve. In the times of widespread slavery, a slave owner didn't create the system of slavery, yet nobody would disagree that the slave owner is exploiting the slave, for the slave has no choice but to be a slave, either to this particular owner or to any other owner.

It is not a consensual relationship, and at the very least it is exploitative, just as a prostitute who must sell herself on the street to make ends meet is being exploited - not by any particular person, but by the system perpetuated by the individuals who force her to sell herself in this way. When the only alternative is starving, I'm afraid to say that it's not consent when someone agrees not to starve.


Someone has to work to produce the goods and services we need

In slavery the owner is creating the conditions of oppression. In free market the employer is paying the wages which could potentially lift the employee out of poverty

Equating all hardships to slavery is pure folly


> Someone has to work to produce the goods and services we need

I agree, but they don't have to work for someone else who extracts surplus. They can organise themselves and work themselves, voluntarily. They then own the products they make and decide how and if to distribute them.

>In free market the employer is paying the wages which could potentially lift the employee out of poverty

In slavery, the slave owner is providing the housing and food which could potentially lift the slave out of being in a state without food or shelter.

The owner and employer both perpetuate the system of oppression, this much is a fact. If there were no capitalists, there would be capitalism. If there were no slave owners, there would be no slavery. If there were no lords, there would be no feudalism.

You cannot escape the fact that the capitalist is taking advantage of the lack of choice and lack of capital by virtue of accident of birth and the property system which the capitalist defends and supports.


> but they don't have to work for someone else who extracts surplus

This surplus is profit, which is the motivation for setting up businesses. Take that away and there is no good reason for taking the risk

> They can organise themselves and work themselves, voluntarily.

This is already allowed in a capitalist society

> They then own the products they make and decide how and if to distribute them

Disagree. The labourers own their labour and the owners own the product

> In slavery, the slave owner is providing the housing and food which could potentially lift the slave out of being in a state without food or shelter

Again, in slavery you do not own your labour. So the surplus of your wages ( or time ) cannot be invested, or used to create capital

> The owner and employer both perpetuate the system of oppression, this much is a fact. If there were no capitalists, there would be capitalism. If there were no slave owners, there would be no slavery. If there were no lords, there would be no feudalism.

What does this even mean ?

> You cannot escape the fact that the capitalist is taking advantage of the lack of choice and lack of capital by virtue of accident of birth and the property system which the capitalist defends and supports

Without property ( which ultimately boils down to the right to enjoy the fruits of one's labour ) there is no good reason to perform the unenviable job we call "work"

To me, it looks like the system you are proposing would be very much like slavery


>Take that away and there is no good reason for taking the risk

I'm not arguing for businesses, I'm arguing for the destruction of capitalism. I hope that businesses currently around fail.

>This is already allowed in a capitalist society

Any organisation which attempts to do so will fail very quickly, due to the fact that (i) workers must be kept employed, not disposed of when machinery that does a better job becomes available (ii) workers would have to be paid much higher than in those firms that do not operate as co-operatives. These two facts mean that such an organisation cannot compete. A good analysis is here: https://www.youtube.com/watch?v=yAxajtiRatg

It is not a viable option within capitalism to provide for the labour force in the interests of the labour force. Also, most people cannot be employed in a co-operative, so the problem still exists. As long as the problem exists for even one person, I view that as reason to fix the system.

>The labourers own their labour and the owners own the product

Wrong. Labourers sell their labour-time to the capitalist, and that commodity has the use value of creating labour, which is transferred to the products. The labour is crystallised inside the products which are made, and those are appropriated by the capitalist at the end of production. If the worker owned his labour, the products at the end of production which the capitalist re-possesses in order to sell would have no more value than when they entered the factory as raw materials and machinery. Therefore the capitalist could not make any profit.

>What does this even mean ?

Capitalism requires land and property owners; if those land and property owners cease to exist, capitalism must also cease to exist. As such, the system which creates the force for people to choose between starving and wage labour is perpetuated by the whole class of property owners, i.e the capitalists.

>Without property ( which ultimately boils down to the right to enjoy the fruits of one's labour ) there is no good reason to perform the unenviable job we call "work"

Why is work unenviable? And within a Socialist society, the workers own what they produce by the end of the production process. They can then decide democratically how to distribute the products that they make among themselves, or choose to not distribute them at all. If you are trying to say that humans just sit around all day and do nothing, this is incorrect; in any system, one must work to survive. In a Socialist system, you are rewarded according to your labour, because you own what you make in a joint production process.

There are various motivations for wanting to work, too; the desire for credit, wanting to provide for your family and children, wanting to improve the conditions of the society you live in, the desire to help other people in your community, out of necessity for something you want to see finished, for mastery, as a hobby, etc.

It will be up to an individual to decide why he wishes to work, but in no circumstance will he forced to sell his labour-power for someone to make money from his labour without doing an hour of labour themselves.


> Any organisation which attempts to do so will fail very quickly, due to the fact that (i) workers must be kept employed, not disposed of when machinery that does a better job becomes available (ii) workers would have to be paid much higher than in those firms that do not operate as co-operatives. These two facts mean that such an organisation cannot compete. A good analysis is here: https://www.youtube.com/watch?v=yAxajtiRatg

If it is true that communist societies are superior they should not be bombable by capitalist societies. But if you are claiming that capitalist societies are inherently more unjust to favor people with capital, communist socieities as inherently more unjust in a way that favor people with political power

> Labourers sell their labour-time to the capitalist, and that commodity has the use value of creating labour, which is transferred to the products. The labour is crystallised inside the products which are made, and those are appropriated by the capitalist at the end of production. If the worker owned his labour, the products at the end of production which the capitalist re-possesses in order to sell would have no more value than when they entered the factory as raw materials and machinery. Therefore the capitalist could not make any profit.

This is pure nonsense on many levels.

What about the value derived from the risk taken by the enterpreneur ? What about the value derived from the work done by the enterpreneur ?

Also value is subjective. A hungry person will pay more for a piece of bread than a satiatated human being. This again is a source of profit ( and no, its not oppressive if there is competition to establish a fair price )

> Capitalism requires land and property owners; if those land and property owners cease to exist, capitalism must also cease to exist. As such, the system which creates the force for people to choose between starving and wage labour is perpetuated by the whole class of property owners, i.e the capitalists.

The difference, again, is that the wages paid can be used to climb out of this position. This option is not available in slavery. Employee-Employer relationship is mutually beneficial, not oppressive

> Why is work unenviable?

Do you work for Google ?

> There are various motivations for wanting to work, too; the desire for credit,

> wanting to improve the conditions of the society you live in

> the desire to help other people in your community, out of necessity for something you want to see finished, for mastery, as a hobby, etc

This does not ensure that the important and necessary work will get done. Also it does not ensure that the work which contributes maximum to the society is preferred over other useless work. I prefer to live in a world where important work gets priority even if it means I have to perform unenviable tasks for limited periods of time


> What about the value derived from the risk taken by the enterpreneur ?

The fact the entrepreneur was able to take a risk at all is remarkable by itself: without starting capital (often inherited), you simply cannot take any risk to begin with.

Want to reward risk-taking? Think how this very thinking perpetuates (perhaps even increases) inequality.

> What about the value derived from the work done by the enterpreneur ?

That work has value and should be factored in the final value of the products, then rewarded.


The choice between death and servitude is exactly how slavery worked. That choice was often used as a justification, even: whoever values life more than freedom doesn't really deserve to be human any more.

Make no mistake, slavery also requires consent: the slave can always kill himself at the very least.


Your point about consent is inane, you are ignoring their intended meaning, a meaning that is pretty well clear enough (agreement without coercion).


Forget the intended meaning, and focus on facts and consequences. When people have to chose between servitude and death, for whatever reason, whoever chooses servitude is effectively a slave. Good old slavery or modern sweatshop, it doesn't matter: the situation is the same.

Coercion (or lack thereof) is immaterial. And even if it's not, we could argue that there is a coercion of sorts: how come the employers don't offer better choices? Are they even talking to the government to help them offer better choices? Or do they just want to maximise profits, using whatever means necessary? Sure, their responsibility is much more diffuse and less clear cut than that of a slaver who would personally kill unwilling slaves. But from the point of view of the slave/employee, the result is the same: servitude or death.

Note that the sweatshop situation is dire enough that some people do chose death over the sweat shop. Enough of them that some shops have nets around them to prevent their employees from jumping off.


>Disagree. Slavery requires lack of consent.

Rape is a thing, so I don't think this is a very good moral standard. Informed, active assent is the usual standard.


> It's not slavery, nor even indentured servitude when you can quit at any time.

Many people can't. I mean, they can, but they can't afford it, unless they're willing to risk homelessness.


Every discussion on productivity on here is basically dominated by people talking about how 40 hours is even too much for high quality creative work and that much of the heavy lifting for ideas is done when not in front of a keyboard and that solutions often come to people during their downtime.

Funny how that sentiment disappears completely when the topic of employers wanting your total productive output comes up.


Hourly contractors should be exempt.


Something I've seen a few times is a disclosure mechanism that allows you to declare any side projects that you're working on in your own time and carve those out from the IP assignment rights usually found within NDAs.

Now, you can argue that it's not your employer's business what you do off the clock, but it at least provides a way to protect yourself from falling foul of the agreement and having the company later claim ownership of your work. The key though is to ensure that you don't do any personal work on a company laptop - I believe once you do that all bets are off.


Do you have any evidence of that disclosure mechanism actually working in the employee's interest? I always read these clauses as 'notify us when you start new side projects so we can decide if we like them and take them off you for some reason or other'.


That's interesting. As a contractor I saw them whenever subcontracting, but they were always willing to clarify to the point that they didn't want me contracting with any of their customers directly (and usually only ones that I met through the parent contractor).

As an employee, every company I've ever worked for has given me one. Few have been negotiable, but pretty much all have openly stated/agreed they weren't enforceable in CA when I raised concerns.


The proper response to "it's not enforceable in CA" is to say "then you won't mind if we cross it out before I sign".


> A company is paying me to work for them, they're not paying to own me.

True. But said company may not want your experience, let alone anything you learn about their business, to benefit competitors. Indeed, they may consider your training with them to be an investment, which gives them rights about what you do with it.


Belated edit: I'm not agreeing with said company. I'm just pointing to its perspective and reasoning.


That's sophistry. Being full time employed means just that. Obviously you have free time and that's great, but that's time to do not-work, not other work, and that's obvious and reasonable to the vast majority of employees, and it makes a lot of sense that prohibiting it is the default.

The fact that we work in a field where your hobby might quite often be productive work to the extent that it could compete with your day job is an extreme privilege and is to be treated as such.

That said, these things are often malleable, and that's a good thing to be aware of, but grandstanding on "4.2x salary" just makes you look entitled.


> Obviously you have free time and that's great, but that's time to do not-work, not other work, and that's obvious and reasonable to the vast majority of employees, and it makes a lot of sense that prohibiting it is the default.

Wow. So your point is that, because you like doing non-work on your own time, everybody should be prohibited from doing work?

> The fact that we work in a field where your hobby might quite often be productive work to the extent that it could compete with your day job is an extreme privilege and is to be treated as such.

Holy shit, seriously? I seriously have to ask my employer permission to have a hobby because the hobby might be lucrative? I have a hard time believing you actually hold these opinions.

My employer isn't the one who made my hobby "a privilege". My hobby might be a privilege, but I'm sure as hell not going to ask my employer whether they'll allow me to practice it.

It's not a privilege, by the way, because it's a hobby. At most, the "privilege" is the fact that people will pay for it, but it's the same for any person who actually enjoys the field they work in.


"Being full time employed means just that."

"Full time" is just shorthand for "40 hours per week." Don't read things into it that aren't there.


I hear this advice about contracts of adhesion all the time, "just red line out the parts you don't like, just like in that scene in 50 Shades of Gray."

Who in the software industry still gets offers like that? Everyone I know gets a DocuSign PDF they sign digitally. There's no opportunity to alter the document.

There is basically no non-confrontational way to do this. If a software developer has a competing offer, sure, leverage it. Otherwise, I think the only realistic remedy is a state-wide or nation-wide legal protection.


Quoting Herb Cohen's "You can negotiate anything" about signing leases under unfavorable terms:

"In rare cases where a person still hesitated to sign his or her name, I might add 'The legal people won't approve of any changes'. Keep in mind that the legal people didn't even know they wouldn't approve of any changes. Nevertheless, the phrase worked like a charm, since 'legal people' projects, on a wide screen, a powerful image of legitimacy. One theoretically doesn't fool around with the legal people."

Part of the magic of contracts is that everyone seems to believe they are magic. But a contract is simply an agreement between two parts. You are more than welcome to suggest changes to it.

As for the PDF, just because the company makes it harder for you to change its terms it doesn't mean that you can't still do it. For an extreme case, this guy[1] scanned a credit card contract, modified its terms, and send the modified application back. He then sued the bank, and won (they settled during a later appeal).

[1] http://www.telegraph.co.uk/finance/personalfinance/borrowing...


How can there be a valid meeting of the minds if you're expecting me not to notice my words have been tampered with?


That is a very good argument, but some banks are very dependant on nobody reading the fine print. Can you call that a meeting of the minds?


This extreme case of sending the modified application back is the perfect countermove!


What?

Only if you're very inexperienced will this be tricky, once you're senior nobody bats an eye when I ask for things to be changed in the contract.

A contract is part of communicating how we will work together. Demonstrate that you're competent by clearly communicating the changes you want and why you want them and if they react back poorly then you dodged a major bullet, since they'll also communicate poorly in day to day functions.

I'm not saying you'll always get what you want, but there should never be anger, and just because you're sent a signable document via DocuSign doesn't mean you have to sign that version of it.


I've been working in software for a long time, and have been asked to sign non-competes over a dozen times by now.

I'm a contractor, which makes it much easier to turn down (how the hell could I possibly keep working with a non-compete?), but the OP is correct in that almost everything is a PDF nowadays. You have to bitch and scream to get a contract changed. Most naive workers won't understand that there's a negotiation process; they simply think that the contract represents the job.


I've never had to send more than an email.

> Hey Frank, just read through the non-compete and I have a few small changes. 1. Since we're only working on a proto-type for a classifier for sorting documents can we amend the non-compete to specifically mention that domain? I don't want to limit my options unnecessarily but I appreciate you wanting to stop me from turning around and selling this stuff to Microsoft once you're done. 2. The term is unlimited right now, which I'm not even sure if that can stand up in court. Let's cap it at 2 years from project completion or my leaving the project. If it's easier for you to just agree to these changes over email just reply by saying "Sure Zach, these changes are completely reasonable." and I'll sign and add "with agreed changes" next to my signature.

That will 100% stand up in court, and really if they say "no" to it then you say "no" to the opportunity, but I've never not been able to get to an agreement with someone. Good help is hard to find, and a little charisma goes a long way when negotiating.


Restricting the noncompete to cover only a very narrow domain can work too. Depending on how specialized you are, that might not be enough, which is why I recommend conceding only term-of-employment.

Your example sounds perfectly fine! But if you've spent decades building "3D animation engines for games" at various companies that do so - and that's basically your career now - you won't be helped much by being specific about what type of work is considered competition. YMMV, so concede only in ways that leave your options open.


It may be advantageous to purposely avoid an in person discussion of the contract (especially with an HR person who couldn't care less if you're hired or not), and then bring it up in an email. Because an email allows you to fully explain your position before being interrupted with something like "it's a standard contract" which would tend to shut down an in person conversation.


> "it's a standard contract"

For my current gig as a linux sysadmin I was hired a couple of years ago, and handed a standard employee contract. There was a clause in there that I agreed not to install free software on my work computer. The clause was just there for tech naives who might install any old crap, but it was funny for a linux professional. There was zero trouble amending the 'standard contract' to get rid of that clause. :)

In any case, you can bet your booties that the higher up the food chain you go, the less people get a 'standard' contract and the more it's tailored individually to them.


I'm 100% with you, an email is all it usually takes, but most people don't realize that. When your life and blood depends on competing with the people you work with, it's very simple to say "no."

But when you're just getting a start and think that "this contract is life or death"? It's a non-starter, you would never think of negotiating it.

It makes more sense for them to simply be illegal than negotiable for that very reason.


Huh...I actually did this when I got out of a developer bootcamp in 2014/2015. I come from a family of lawyers; redlining a contract is second nature. Data point of one, but I think it's more a cultural norm - there's a strong norm in American society, in particular, against negotiating. Funny how well that works out for the people who control the capital and don't have any issues ignoring that norm. They should be illegal, but more people should start more conversations with a negotiating mindset as well.


>You have to bitch and scream to get a contract changed.

I've never had to bitch or scream. Just say "Oh and by the way, I have a couple of changes I need made to the contract".

Nobody's ever made me feel unreasonable for asking that, not even when I was fresh out of college.


Exactly. It feels even easier and more reasonable if you do the work for them; copy the document, make the changes, export as PDF and send it back. Everyone worth their salt understands employment agreements to be negotiable.


IMO It's better to hear out the concerns of the hiring manager and ask for their side of the story regarding why the clause is there.

That way they feel like they've been heard and their concerns are taken into account which makes them feel better when/if you formulate a new clause.

Sending back a printed list of demands could be interpreted as unnecessarily confrontational.


Conversely, though - if you're completely unwilling to accept a clause that limits your employment after leaving the company, your starting point should be an agreement that doesn't have such a clause in it. Don't give them the impression they can talk you out of it. By giving them a new document to sign, they are the ones who have to confront you if they want to re-add the noncompete.

This is a your-mileage-may-vary thing and there is no easy answer for all cases.


"if you're completely unwilling to accept a clause that limits your employment after leaving the company, your starting point should be an agreement that doesn't have such a clause in it. Don't give them the impression they can talk you out of it."

You don't have to be willing to accept it, just be willing to hear their side of the story.


I was definitely exaggerating, and I'm sorry for that. That being said, it should be illegal simply to avoid the conflict that exists.


"You have to bitch and scream to get a contract changed."

Print out the PDF, pencil in your changes, and then scan the document.

Thats what me and my school would do for actual contracts that were made for performing artist contracts, ect.


Yep, or just use a PDF editor, which is even simpler. Just cross out lines or whatever.


> but the OP is correct in that almost everything is a PDF nowadays.

What's so immutable about a PDF? I'm thinking about my most recent job where when the contract arrived in my inbox it had a salary 10% lower than I expected. I was disappointed and anxious about how to continue. It was a good job, but I didn't want to take a pay cut. I sent off a quick email clarify it, unsure how it was received. An hour later I got a short apology and a new contract.

Asking is free. It's as they say - you never know if you never go. If they still resist, then you've done the hardest part of starting the conversation, and it's up to you to see if you want to continue with the negotiations.


Don't bitch and scream. That's terrible way to start a working relationship. Just tell them which clauses are not acceptable to you, and suggest reasonable changes that take their interests into account.


Sure, they can turn off editing in DocuSign, but that doesn't change what this is: a negotiation. Download it as a PDF and then copy/paste it into a Google Doc. Edit the document as you feel is necessary, print both the redlined copy (so you can explain your proposed changes) and the clean one.

If they're cool with it, sign the clean employment agreement together on the spot. Make copies and you're done.


There is a non-confrontational way to do this. Download the PDF, figure out what is making you uncomfortable (or hire a lawyer to review), and just send a list of concerns. Make them matter of fact, but not accusatory.

This is assertive. But it's not "confrontational." And if your employer withdraws the offer because of it, it's a huge red flag and you're lucky. But I've never seen an offer revoked for asking questions.

If you have more leverage, then you can be more "confrontational." You might want to mark up the agreement (or have a lawyer do it) and send back. That may seem a bit more forward, but you can certainly do it.

Please don't think you can't question what your employer puts in front of you. Maybe they won't revise the agreement for you, but it's worth trying if you have concerns.


I've had multiple employers "alter the document." I send an email, saying I have reviewed, saying I can't sign unless A, B, and C are done.

Usually, this involves removing clauses about not having other employment or side work, which are a non-starter for me. One employer added an appendix full of "exceptions", saying "all side work is allowed, not further authorization required."


There is absolutely a non-confrontational way to do this. Call them. Tell them you have a few questions about a couple of points in the contract. Ask them what point 3.2 means, tell them you'd like point 4.1 can be rephrased to make something clearer, and that you'd like the non-compete clause clause in 7.2 to be limited in duration and scope, because the way it's currently phrased, it could be interpreted as signing away your right to work, and that's obviously unreasonable.

Be reasonable, and you will likely get most of what you want. If they are unreasonable, you're probably better off working somewhere else.


contract negotiation requires human interaction. the "redline the clauses that are unacceptable to you" statement should be treated as non-literal. you don't literally resubmit a document with struck text. you get on the phone and talk to the hiring manager.


Mhm! This is something any professional should learn to do early on. You can literally print a new document and show them the changes you've made, but you still have to interact with the person hiring you.


If the other side sees ordinary negotiation as 'confrontation', walk away.


Anecdotally, I had a case where I managed to strike out the whole noncompete from the contract. And the management still came after me, because they "didn't read it" or "thought it's something else". They knew they had no standing but still went ahead to claim an implicit noncompete. So yes, in the end you are legally covered, but once someone demands a noncompete out of the blue after the compensation is negotiated, that's not an honest party and will probably get pissed off if you dispute it. Noncompetes cost money, they should be disclosed at appropriate time and people should be compensated for it.


Just be ready for the company to pull the offer. Lots of times it's not even on the principle (we don't actually agree to the changes) but ego ... as in "who does this guy think he is pushing back on this contract that 100s of our employees have signed"

If you're not ready for the company to walk away, be careful with this approach.


Agreed. Be aware of your BATNA (that's your "best alternative to negotiated agreement") as well as the potential employer's. As in any negotiation, you should stack the deck in your favor beforehand - be late-stage in the interview process elsewhere, ideally have other offers, truthfully signal that you do, and try to move at a time when the employer badly needs to make a hire.


If you're not prepared to walk away from the table, its not a negotiation. They're just telling you what you're going to do.


Exactly right. Large companies are especially prone to this behavior. If you're coming in as a VP or Director its one thing, if you're coming in as a non-executive it is entirely something else.


If it's an unreasonable contract and they refuse to make the contract reasonable upon request then having the company walk away probably means you dodged a bullet.


Is starving to death really better than signing a shitty contract?

It's not very easy for most people to find a new job.


For software developers there's usually another job out there although I agree in principle - if you're on the low end of the wage ladder you're somewhat screwed.


If you're not ready to walk away then you're not ready period.


You are correct. And naive. Most people (and also myself, for most of my career) are very weak when confronted with these things. The world doesn't work the way you describe it.

Imagine you are getting your dream job at Amazon.com and someone is telling you to negotiate or discuss this part. Large companies are much less willing to accept anything like this.

However, in your defense, I am pretty sure that negotiating in itself doesn't cause any harm to your opportunity to be hired.


Most companies are indeed not willing to discuss these things. If your stance is "be able to negotiate these standard contracts or walk away" you will be doing a lot of walking away.

In a world where employees have even an ounce of power, this might change, but we don't live in that world. Even in the software world, what new hire has any power whatsoever to negotiate their employment agreement? You're at your weakest: You have no track record yet at the company, few to no allies, and there is a line of other applicants out the door who would be thrilled to have your job offer. From the company's point of view, why should they bother with you if you're already being difficult?


This is a good reason to start your career in California, where the government protects you until you get enough professional experience to negotiate.


Also, as the article describes, it is common to be presented with such agreements when you have little leverage.


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 straight face? Is there a moral aspect?

If there's no moral aspect, why do you have to revise unenforceable clauses? ("let sleeping dogs lie.")

I wanted to make sure the proverb I said was what I meant, this is the dictionary definition that came up: "avoid interfering in a situation that is currently causing no problems but may well do so as a result of such interference."

Doesn't that describe redlining unenforceable clauses you don't like?

-----

EDIT: Thanks for the replies guys. I was specifically asking about California. I think the replies give good reasons why you should redline unenforceable clauses (and this comment has been downvoted, but I'm keeping it for context for others reading the thread.)


I had to do this in a place that wasn't California.

Also, they generally don't track you down at a barbecue. They'll try to tell the company you are jumping ship to that your employment there would be illegal, as TSG Finishing did. The future employer will then have to send back strongly worded letters clarifying California employment law. Frankly, you want to avoid that whole mess in advance.


There is the small issue of whether or not your personal integrity allows you to sign an agreement you do not intend to abide, regardless of the legality.


Well, somebody is trying to impose something so absurd onto you that it is illegal, and you still have moral issues about lying to him?


That's one of the qualities of having integrity - a lack of integrity in others does not change your behavior.


Why would legality change the moral aspect?

The law is an imperfect reflection of morals, not the other way around. Most people's sense of morality is not based on the law.

It's possible for perfectly reasonable people to think non-competes are not "absurd", regardless of California employment law.


I think the comment might be inclusive of noncompetes in territories other than California, which are more often than not encorceable.


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).


Non competes should be: Upon leaving you cannot work for a competitor BUT, only if we offer to pay you the salary you had when you left. And only for a max of 1-3 years. Otherwise they should be illegal.


In german civil and commercial right, that is exacly the case. One can indeed enforce the non compete in which he has to stipulate in the contract the amount it is going to pay you if you are not allowed to work for someone else. If this is not stipulated, the clause cannot be enforced.


In the Netherlands is not legally enforceable either. You can only enforce not be able to take clients with you to your new employer for a fixed amount of time (e.g. 6 months).


Can you elaborate more on how it's not enforceable in NL or provide some reference? Here is an example of a contract from a tech company in NL w/ a noncompete:

The Employee shall throughout the duration of this employment contract and for a period of one year after termination thereof, not be engaged or involved in any manner, directly or indirectly, whether on the account of the Employee or on the account of third parties, in any enterprise which conducts activities in a field similar to or otherwise competing with that of [COMPANY NAME] and/or its affiliates, nor act, in any manner whatsoever, directly or indirectly, whether on his own behalf or for third parties, as an intermediary in relation to such activities. This obligation applies solely to any work activities or involvement of you within the territory of Europe.


Of course it is legally correct but there are dozens of ways to get out of it. Some examples:

- If you can show that you are making a significant step career-wise (easy) - If your function is different than when you started and didn't sign a new non-compete (from backend to full-stack) - If the contract is temporary 6 months or 1 year its not valid - If you didn't specify a fine, you need to show evidence of damage/loss of that employee leaving to a competitor (impossible?)

So just a few ways to get rid of it. Almost every (employment) attorney in NL will get this non-compete blown away.

My 2 cents: It costs a lot of (negative) time and if someone wants to leave just let them go. If you respect them, they will respect you. If you screwed them over and over they already copied the data the want and will still leave.

Turn the non-compete to a non-client clause (relatiebeding), way softer but ensures that they can't "steal" your clients. Because you are being generous not limiting the person to move to a better position this clause will be way harder to get rid off. Still be reasonable though :)


in my personal experience: no lawyer in NL will accept this. At least not for SE jobs where in doubt every other company could be in a similiar field. so don't worry. nevertheless, i wont ever accept such a clause again in any of my contracts


There was an update in 2015 for defined term contracts.

It requires the non competes clause to define duration, geographical scope and explanation why the interests of the employee require it.

Not sure it was altogether thrown away.


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 about that.

Unfortunately it doesn't really work like that. You can't just purge your brain of something you've been working on for months or years. On top of that it's nearly impossible to prove that a confidentiality infringement was made unless code or hardware was straight up exported/copied and implemented.

Especially in the case where a megacorp hires away someone from a startup, the startup can't reasonably sue megacorp for this type of thing because it would cost too much and be basically a total loss.

Effectively it happens like this:

Employee 1 was implementing a novel computer vision algo for Startup X.

Megacorp approaches Employee 1 with 3x salary offer and stock.

Employee 1 leaves startup to work on a similar project for megacorp.

Startup can't ask what Employee 1 is working on because Employee 1 and Megacorp have an NDA.

Megacorp comes out with a new product that implements the algo, except it was implemented by the team Employee 1 was on which had been working on the same problem for a while and not just Employee 1 themselves.

I've seen this happen first hand, so it's not like it doesn't go on.

There are a million "reasons" why people are ok with this situation and just blame it on the startup not being competitive with salary, but increasingly that's basically impossible.


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.


I do agree there are situations in which a non-compete could have value not only to a particular employer, but to the overall economy.

The problems are:

1) Even in those situations, does the societal value outweigh the harm to the employees who suffer under the weight of the non-compete?

2) Even if the answer to #1 is yes, is there a way to narrowly craft law that allows non-competes in that very narrow situation without the collateral damage of other employers foisting non-competes on employees in non-analogous situations?

On #2, my guess is the answer is no. We have bright-line rules for good reason - because without them, it is easy for an employer to get around them. They are a blunt instrument, but they work. A lot of labor laws are like this.

And remember, the situation you were concerned about - the small startup vs. big company situation where the startup cannot enforce its trade secret rights because of costs of enforcement - would end up being turned into an analogous situation in the employee vs. big employer context if we allowed more non-competes to be enforceable. Maybe the employee's legal position would be correct, but try going up against a big employer in a legal battle to fend off enforcement of such rights.

Maybe instead of playing around with rules around non-competes, we should be focusing on providing a greater ability for small companies to enforce IP laws? For example, better attorney-fee shifting provisions?


All good thoughts.

I think it's part of the ongoing David vs Goliath problem. My worry though is that it's last call for small companies being able to compete and grow.


Redlining the non-compete section is not a minor modification. Some companies are very serious about their non-competes. They will pay you millions of dollars to respect them (and sue you for millions of dollars if you don't). If you try and cross out your non compete agreement they will just withdraw your job offer.

Non competes aren't intrinsically shady or evil. Some companies have business models that depend very heavily on secret IP. It's just another adverse factor you have to add into the mix when evaluating a job, along with compensation, work-life balance, advancement opportunities, etc. Many non-competes are very well compensated, and limited in scope to a particular niche industry, so you could still go off and work anywhere else in tech industry where your IP cannot be used against your old employer. Signing one isn't the worst thing in the world.


First off, noncompete agreements and nondisclosure agreements are separate things. I don't see anyone here arguing that an employer's proprietary IP does not deserve protection.

Secondly, while there do exist well-compensated noncompetes for executives and other high-value employees -- and I don't think anyone here is arguing against those either -- the vast majority are not compensated at all, except that the employee gets the job in the first place.


Since you can't lobotomize someone when they quit, it's impossible to prevent someone from using proprietary knowledge and insights at their new job, even with a nondisclosure agreement in place. IP transfer doesn't always happen in a way that's overt and easily prosecutable, like stealing confidential blueprints or explicitly telling your new employer trade secrets.


Well, I think that in most cases, a fair amount of that knowledge qualifies as general knowledge about the problem space, notwithstanding that employers would like to paint it all as proprietary.

Still, there is a little truth in what you say. But we in California think that that is a price very much worth paying in exchange for the more vibrant economy afforded by outlawing noncompetes.


This advice is not meant for people who are being paid millions of dollars to respect a non-compete they fully understand and consent to.


Change the numbers by a factor of 10 and the point still applies.


I agree. This is aimed at people who:

- Are fairly new to the industry or are otherwise trying to act in a buyer's market for labor,

- Are being offered market-rate or lower with no extra incentives, and

- Have a potential employer trying to foist a noncompete on them for no particular business reason.

Understand the employer's business model and whether noncompete will be a sticking point for them. If it is, then the situation is very different, and you should be asking for lots of money rather than the clause's removal.


> Non competes aren't intrinsically shady or evil.

If they're not paying you while you're not allowed to work in your field, yes, they are. And unfortunately that's a lot of them. If you're being paid to sit in your backyard or do something in a another field, that's a different story.


I have always refused to sign these. I've been presented with five in my life and in every case they either remove them, or in one case they added an addendum to nullify it.

In most contracts that are for companies that are across states, you'll see this clause marked with a "Not applicable in California."


Trying to get an employee to sign a non-compete in CA is not just a bad idea, it can cause problems for the employer.

http://www.socalinternetlawyer.com/non-compete-agreements-ca...


> In the end, most employers won't bother to argue the second point, and the ones that do are probably shadily taking advantage of you in other ways.

I can't say if you're right or wrong about this, but personally I'm pessimistic about the claim.


Laughable unenforceable in CA. Basically equivalent to toilet paper for the employer in CA.


You still don't want to deal with even a nonsensical court date if you can avoid it with 5 minutes of redlining.


Is an extra round of back and forth to strike a legally meaningless provision worth it though? Another reply in this thread claims their former employee sued even with the redline.


Well not just unenforceable, but they are specifically prohibited by law there.


You are right they are not enforceable in California but they are enforceable in most jurisdictions. California is in the minority.

The issue with requiring your employer to make it only be for the duration of the employment is many companies don't want you to learn about their customers, and methods and trade secrets and then quit to set up a business in the same area . . . which is reasonable. Non compete clauses are allowed in most jurisdiction so long as they are reasonable as to duration (don't last too long after employment) and reasonable as to distance (only cover a limited geographical area)


When my previous employer sent me my offer letter and contract, they'd already signed it on their side. I simply crossed out the non compete clause, signed it and returned it. I don't think they even noticed.


Health insurance is also part of the rigged labor market.

The only reason big companies offer health insurance is because it limits employees's freedom. It would be easy for the Fortune 100 or 200 in unison agree to eliminate health care and provide a higher salaries. It would make the companies more competitive globally and it would free them from a whole lot of other nonsense, but they don't drop healthcare. The reason they don't droop healthcare is because healthcare and pre-existing conditions limit employee options and it suppresses wages. Also if there was universal healthcare it would be easier to start small companies and attract employees, those small business would be competing for employees against big companies on equal footing.

Healthcare is a racket limiting not just healthcare but freedom.


Employer-provided healthcare got started in the US because of wage and price controls (employers were allowed to improve healthcare benefits but not increase salaries directly), and continued because it's exempt from income tax.

Some big companies may prefer it this way, but a lot of others with plenty of political clout (e.g. carmakers) don't. On the whole, that's not a major reason employer-provided healthcare is still afflicting us.


> Healthcare is a racket limiting not just healthcare but freedom

The fact that Healthcare is tied to employment is downright shocking to virtually all developed countries.


As an American, I'm routinely disappointed every time they announce "healthcare reform" and this issue isn't even part the conversation. Both major parties have failed on this.


McCain tried in 2008: http://www.commonwealthfund.org/publications/fund-reports/20.... The Democrats immediately attacked it as "taking away your existing insurance".

It really is baffling. Everybody would understand that it would be terrible if employers were the primary providers of housing, food, or transportation. But for some reason with health insurance, we not only accept but demand it.


Allegedly, the "Cadillac tax" on expensive employer provided plans was supposed to phase out employer coverage. That portion of the law purposefully wasn't indexed to inflation so that eventually more and more plans would be subject to the tax.


> we not only accept but demand it

Hey, leave me out of it. Plus, polling is misleading. There are certainly options we could settle for, like grandfather clauses and gradual phase-ins.


Healthcare is absolutely available to those without employment. Where have you heard otherwise?

In fact I wouldn't be surprised if the majority of the healthcare burden in the US is from patients without employment. Medicare and Medicaid are some of the largest funds out there.


Oh, I'm not saying it's not available to those without employment, I'm saying it's sickening that it is very often tied to employment, for those that have employment.

Ones employment and ones health should not be linked in anyway whatsoever, lest bad things happen.


I agree entirely. Student debt and healthcare have evolved to be a means of keeping people trapped in industry. After dealing with health care in other countries, I wrote a post on what I found returning to America:

http://fightthefuture.org/article/returning-to-america-and-t...

America wants you to work. Work work work work work. Our European neighbours can save up and take a few months off every few years and not have to worry about health care. In America, we only get socialised healthcare when we're too old to work and are no longer useful to society.


To be fair, Americans work. Work work work work[1]. Americans love work and elect politicians who love work.

Europeans hate work. Hate hate hate hate[2]. They hate work and elect politicians who also hate work.

That major (cultural? economic? social? political?) difference between American and European attitudes towards work might explain these statistics:

American vs EU unemployment rate: 4.7% vs 8.2% American vs EU youth unemployment rate: 9.4% vs 17.3% American vs EU GDP per capita: $56k vs $35k

And so on.

Point being, things are only the way they are because we want them to be that way--and elect politicians who do as well.

That said, I agree with the core premise: corporate-sponsored healthcare is a lousy drag on the economy...

[1] http://www.projecttimeoff.com/news/press-releases/americans-... [2] https://www.etui.org/Topics/Trade-union-renewal-and-mobilisa...


One thing about EU vs US comparisons: EU is not a monolith, it is an organization with 28 different member countries.

Some of EU members are on the same level as US (e.g. GDP per capita is $51k for Netherlands, $48k Germany), and then there are poor, post-communist countries like Romania and Bulgaria which have GDP of $20k, which brings EU average down.

Same goes for unemployment: Germany -> 3.9%, Netherlands -> 5.1%, Spain -> 18.75%

Plus, there is no such thing as "European attitude towards the work", because Europe is very diverse in that regard.


The USA is likewise not that monolithic. More so than Europe, for sure. But still.


+1 true. I only grouped EU together for simplicity. It also makes sense since they, by their own political and economic admission, are a unified trade bloc and should share some responsibility for EU-wide economic indicators.


That's strange... I spent 6 years living and working in America and I never met anyone who loved work, with the exception of some founders, perhaps.


I get that people don't love work in America in the way you're saying. I think the idea is that in America you're less likely to get a positive reaction to things such as you're the man and the primary breadwinner:

- You opt to cut your hours from 45-30 and live on less - You take a few months vacation - You take a year paternity leave

I know from experience that those can seem irresponsible to many.


It's irresponsible because social welfare in the U.S. is poor compared to what is available in Germany, France, and Scandinavia.


No one in my American family prefers to work. For many of them they have no choice. The job is a job -- not a career or a calling. It is simply what pays the bills and keeps the kids feed.

For many of them, the job is very physically demanding and the body starts failing apart at age 40 (construction, health care).


unemployment rates and youth unemployment rates sound interesting, but what about measures of happiness? depression? In America we tend to select metrics which also enforce the work, work, work, mentality by making it look like a good thing.


Unemployment figures are people who aren't employed but are searching for work, so I'm not sure it says exactly what you're trying to say.

People who don't want to work, don't show up in unemployment.


The people who count these figures _have_ thought of this, you know - this is called "mid-brow dismissal". They publish more than one number.


>I wrote a post on what I found returning to America:

http://fightthefuture.org/article/returning-to-america-and-t...

I just read your post and my mind boggled at a $200 premium, $6,000 deductible and something about co-pay.

I am 35 and don't even understand that last term, because I should not have to.

Healthcare should be about health, not money.


The US gov already pays about $5,500 per person per year. That's about a thousand more per year than Canada. The statistically average household (2.58 people) will pay an average of $27,000 EVERY SINGLE YEAR on average for healthcare ($10.3K/person/yr).

If Americans already pay more to the gov for healthcare than countries with universal healthcare, why doesn't it exist in America?


> The only reason big companies offer health insurance is because it limits employees's freedom.

It's more complicated than that. Offering healthcare in large groups which are likely to be diverse agewise, has considerable benefits for insurers. If people have to privately insure there's a tendency to forgo insurance unless you're in higher risk of being sick. Which increases average costs. Hence the ACA non-insurance tax etc.

> Also if there was universal healthcare it would be easier to start small companies and attract employees

Yea, absolutely. I really miss that after having moved to the US from Germany.


Health insurance, unlike additional wages, is not taxed. Buying their employees health insurance instead of paying them higher wages allows companies to transfer more money to their workers for the same cost.


the problem is not in insurance itself, then, but taxation


This seems a bit irrational. If there was universal health care than Big companies could just pay their employees more in lieu of health care.

The advantage of being at a small company is you have greater growth opportunity. The advantage of being at a big company is greater steady state benefits and salaries.

It's been shown that statistically, it makes more sense to work at a big company from the perspective of expected value. But not a very exciting way to live :)


The other thing is, and i don't disagree it limits freedom btw, but if you're not in a pool of other people shopping for healthcare you have no bargaining power.


10 tries at an answer, and you got closest to reality:

Employment creates a 'risk pool', specifically one that people are unlikely to join just to get insurance. It is one of very few ways to mitigate the "adverse selection" problem, i. e. only old and/or sick people getting insurance, thereby raising prices, and repeat. The other way is an insurance mandate, or, if you want to cut the chase, single-payer tax-funded healthcare for all.


Single payer needs to be what happens, it's like infrastructure projects/militaries if it's privately owned it can be well above the quality or well below quality that a publicly owned entities but being privately owned for profit kinda defeats the purpose of these institutions.


I wouldn't say it's the only reason. I'd argue the only they reason they offer it is because employees expect it. Private insurance is super expensive, and the government doesn't offer healthcare to most working professionals.


If companies didn't offer Healthcare, there would be more social pressure for a public option. As it is, too many people saying, 'got mine, don't care about yours'.


Employers are in a unique position to offer group health plans. This used to be more relevant before Obamacare and is becoming relevant again. There is no equivalent to a group health plan one can buy individually.


Another problem with "group plans" is that large companies are actually self-insured. The insurance provider is just handling the paperwork, but you are part of a group of people separate from other plans and the employer is on the hook to cover all costs (it's not always what the actuary predicts). The advantage is that working people are generally healthier than the average, so this results in lower costs vs plans that cover the general public.

The purpose of insurance is to amortize the cost of unpredictable things across time and population. Group plans are just another way to select higher quality (lower cost) people for the plan. Of course this means higher than average cost for programs like medicare.


I had a previous employer trying to stop me from working directly for a client. Only, I had brought in the client, I was the only one working for that client and that client didn't want anything to do with the rest of my employer.

I felt morally OK with the situation...

Only, my contract did have a noncompete. But then, this is Sweden, and noncompete clauses are almost not enforceable by Swedish law. An employer can't stop an employee to take another position. To be a valid clause, an employer must offer the same payment the new position would have had whilst riding out the non-work period, and no one does that.

A strongly worded letter from my lawyer sorted it. Never heard from them again.


For what it's worth, this is exactly the reason non-competes do make sense to enforce. (or in this specific instance non-solicitation agreements).

Not to say you necessarily did anything wrong, since I don't know anything about your situation except for your comment. But take a "typical" case similar to yours, and look at if from the employer's point of view. They give you access to stability (a salary), office/equipment, potentially training, potentially their reputation. All of which helps you get a client and focus solely on the client.

If, after all their investment, you can walk off with the client, depriving them of the income that they would've earned, then that makes it less likely for future employers to make these kinds of investments in people.

(Again, this is the generic case for non-solicitation/non-compete, your particular case could be totally different in all the ways that matter).


In France, the clause has to have a salary included in the non-compete. The former employer pays you for all the time they prevented you from working at your new job. I have never heard of any company asserting a non-compete.


Yes, the only case where I've heard it's done is for fields where a lot of research happen in the private sector.

In this case it may make sense to pay a former employee to do nothing for one year until his knowledge of internal tech is no longer confidential because published or released.


Don't know about Sweden, but in several countries / states non-competes and non-poaching/solicitation (clients, colleagues) clauses are treated quite differently.


Yeah that doesn't sound like non-compete, that sounds like poaching.


If you're going to violate a noncompete, don't tell anyone you're going to work for a competitor. Keep yourself as small of a target as possible for your former competitor's legal team.

- When you quit, tell your now former employer that you're quitting to pursue something other than what was your established industry. Your (made up) lifelong dream of starting your own microbrew brand, Macrome supply business, winery, whatever. Or looking after a sick relative, or going back to school full time, etc.

- Cut off ties with all your former coworkers, at least for the noncompete duration. If you bump into them at the grocery store and you can't get away from them, tell them about how wonderful the beer business is or how your relative is doing.

- Don't put on Facebook or Linkedin that you work for the new employer.

- For the duration of the non-compete, only those closest to you who critically need to know about your new employer, spouse, etc will know.

- Avoid publicly-facing industry related activities that tie you to your new employer for the duration of the noncompete. Giving speeches, presentations, writing article, etc.

None of these are foolproof but they are all common sense. Remember the Monty Python sketch about How To Not Be Seen.


Your suggestion is that if your employer tries to pull this unethical behavior against you, is that you should lie, run, hide, and sacrifice your own personal relationships? There are better ways of dealing with this than acting like what you did was criminal and laying low for a year until it blows over.


Such as what? Going to court?


Ok, so you don't have to go this far.

The only thing you have to do, is when people ask you where you work, just say "I'm under NDA. Can't talk about it.".

Or keep it vague. "I am a web developer". Something like that.

No need to get rid of your friends, or hide, or anything like that.

Just simply don't talk about work, and I can assure you that nobody is going to come after you.


I'm not sure if you're being serious or not.


In my area and my industry, that would be impossible for me. Several people at my new employer would immediately recognize me and talk with several people at my former employer.


You live in fear.


My last company's noncompete had a really nice twist: Instead of banning me from seeking employment at a competitor altogether, it instead granted my employer the right, to, at their discretion, compel me to delay starting at a competitor for a certain amount of time. However, in order to do so they would also have to pay my salary over that period.


Seems like a bare minimum for such a contract term to be equitable, but seeking work while you have a job is so obviously encouraged by the current labor market that a non-compete clause strikes me as unpalatable unless it comes with guarantees against termination altogether for the same term.


That's known as "garden leave". Very fair way to implement a non-compete.


In finance, companies will pay you your salary to not work if they decide to enforce a non-compete. It's written into the contract. I have friends who get to take year-long paid vacations when they switch jobs just because they work in HFT.

I'm surprised that this isn't law. I guess financial companies care about their employees more and/or their employees are more astute about contracts.

Companies shouldn't be allowed to prevent their ex-employees from earning a living. If it's that important for them to prevent the transfer of their proprietary information, they should be happy to pay for it.


"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."


Some states are starting to move in that direction too,like Washington state but this isn't as strong as California :

https://www.geekwire.com/2017/scaled-back-bill-aimed-providi...

Apparently Google and labor unions supported the original bill, but the article says that's not the case for Amazon and Microsoft

The scaled back bill removed those points:

> Make noncompetition agreements void if the employee is a temporary or seasonal employee, or is terminated without just cause or laid off.

> Create a rebuttable presumption that agreements restricting competition for more than one year after termination of employment or for employees who are not executives are unreasonable.

> Make noncompetition agreements with independent contractors void


> or is terminated without just cause or laid off.

Wait, seriously? One can be laid off but still barred from working for a competitor? Grateful to live in CA but that makes me ill on behalf of the rest of the country.


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.


If you are required to pay for a non-compete, then most employers won't find it in their best interests to pay extra for them.

The problem is that some states allow non-competes without compensations and most employees sign everything in front of them.

This week a startup asked me to interview for a contract gig. Before the interview they sent me a 3 year NDA. I responded that I'm not signing an NDA to interview for a job, I have no idea what they will tell me and I'm not going to limit my future clients/work options just because we had a conversation. They backed down and we had a high level discussion and I told them to get someone else.

Another option is always to modify the agreement. In the case of the NDA I was prepared to x out the 3 year term and replace it with a one year term and initial it in that state before signing. If they didn't like it, fine.


> 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

If I may nitpick, I'd argue that it only appears to be in employers' best interest to use/enforce them, in the same way that the butts-in-seats/time-in-office metrics are used to gauge performance. It makes sense in a first-pass estimation but breaks down when one considers the cultural impacts. People tend to dislike feeling powerless, which is exactly the effect of non-competes.


I agree that it's short-sighted, not only in the way you describe, but also in a much more direct way. While noncompetes make it easier to retain existing employees, and pay them less, by the same token they make it harder to hire new ones. This ties into the psychology of loss aversion [0]: people pay much more attention to what they have and could lose, than what they don't have but could gain. One could argue that outlawing noncompetes is important to protect society from the effects of this almost instinctive irrationality in human psychology.

[0] https://en.wikipedia.org/wiki/Loss_aversion


In the US, California, North Dakota and Oklahoma are the exceptions. NCCs are legal elsewhere.

http://www.beckreedriden.com/wp-content/uploads/2017/03/nonc...

Even in CA, trade secrets have an exception.

http://www.weil.com/articles/the-trade-secrets-exception-to-...


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.


> 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.

Yes, and that's the rub. I've had several recruiters respond with, "oh don't worry, that's not enforceable" when I objected to an onerous NCC in a contract they presented me with. My response was "perhaps, but you could use it to drag me through the courts and make my life hell, so remove it altogether, or we're done here."

In each case, it was after I had verbally accepted a verbal offer. And in each case, they removed the NCC.


Yes, it costs a lot of money to fight a lawsuit your former employee may bring against you.

But you might not ever get there. In my experience, nasty employers will directly contact and threaten the employee's new employer, which can result in the employee being fired (or maybe never hired in the first place).


So you signed a second non-compete after being burned once?


I didn't get burned either time. See: I had an agreement for someone else to pay my legal bills.


if you don't mind, what state / country?


Twice in Texas for me. In both cases I made paying my legal fees part of my comp with the new employer. The first time I thought a suit might happen. The second time I was sure it would.


In Norway we added a law now from 2017 that the employer have to pay you the same salary for the period the non-compete is in operation. Maximum 1 year. It have you be in you contract up front, and they have to explicitly list customers and competitors.


It's important for software developers and in demand job applicants to push the trends. I refused the noncompete clause at my startup (still got job) and made a point of how I'm principled against them for hurting people like the man in this article. We may be disconnected from the rest of America but maybe my little requirement can put the thought in people's heads that it's wrong.


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.


I don't know that this is good advice. Attitudes toward noncompetes vary from state to state and probably even from judge to judge; I don't think it's a good idea to put one's career at risk from what amounts to a coin toss, even if the odds are 50/50 or even somewhat better.


If you are saying that a noncompete is meaningless, why did you put it into your contract in the first place? I am just curious.



As someone that was made to sign a confidentiality agreement under duress and unfair pressure months after joining the company, with stipulations that basically say ANY work I do, regardless of industry or during the weekend, belong to the company. Even after I no longer work there up to one year, and ONLY if I bother to sign the attached clause that says I no longer work there.

I'm so glad that tomorrow I'll be handing in my two weeks notice especially at a critical time for the company. I'm also the most senior developer that everyone else comes to with questions regarding how the system works and how it can be improved. The original developers left for similar reasons.

What I'm trying to say is, if you think, as a business owner or employer that you can act against the best interests of your employees then you'll end up paying dearly for it one way or another.


Since this should be illegal, or at least illegal absent some reasonable compensation for giving up the right to freely seek alternative employment (e.g. a big retention bonus), presumably our politicians offering "regulatory relief" are to blame?


If the employee was terminated the non-compete should be terminated as well.


I had a friend who got RIF'd from a software company, and their offboarding paperwork included a 1 year noncompete that tied their severance as the consideration. Essentially, "we don't want you working here, but we also don't want you working anywhere else, either."


I got RIF'd and they included the paperwork signed at offer time for the non-compete. I didn't sign it thinking they would try to force the non-compete after the employment was terminated by them.


If the severance falls outside of the mandatory amount by law, then this is reasonable. They are paying you not to work for a competitor for a time.


It's reasonable if the severance is equal to the pay you'd get over the term of the non-compete. They don't want you working for a competitor for a year? That's fine, if they pay you a year's salary.

However, in my friend's case, she was given the 1-year noncompete in exchange for 4 weeks' pay.


Presumably she turned it down?


Probably didn't know it would be 1 month severence.


That creates the incentive for someone who wants to switch to a competitor to underperform - so she gets fired and can switch.

Noncompetes, viewed in a vacuum, are lopsided towards the employer by design. Which is why they are (ideally) counterbalanced by increased pay or other concessions to the employee.


There are plenty of Republicans who are against this type of mercantilist behavior.


there are republicans who arent? they are suppose to defend free market


Voluntarily agreeing not to compete with a company for some period of time is completely fine as a contract in a free market system. Not interfering in those agreements not only doesn't contradict a commitment to free markets but is actually a logical extension of it: individuals engaging in the system ought to be free to conduct whatever transactions they see fit. Free markets and well-functioning markets aren't coextensive, though, and that's the rub with non-competes.


The article provides one example of Republicans defending the free market, but usually that's the last thing on their minds. (See e.g. how the phrase "everything is bigger in Texas" applies most of all to government.)


My first (and last) non-compete was when I was starting out as a web developer in a small company. By the time I fully realized what I had signed I had contractually given up my right to work for any other webdev company for 1.5 years, and even worse, the company owner stated that he believed the non-compete also extended to all our clients (and the clients of a major client) too. This meant nearly all banks, Heineken, Google, and consultancy agencies (we ran a job board).

Needless to say I am not a web developer anymore.


The really annoying thing about noncompetes is that they're usually at the discretion of the employer. You might be in a situation where you have a 12 month noncompete and nobody wants to hire you 12 months in advance, but then your former employer terminates your noncompete within a month and stops paying you.


If they terminated the noncompete, that's excellent!

I'm thinking you've made a typo. ;-)


It's not excellent because they stop paying you if they terminate the noncompete, but you also can't look for a new job until the very end of your noncompete period.


Perhaps you're right if they terminate your employment and the noncompete remains in force. But if they've terminated the noncompete, it's no longer in force and you can find work with a competitor.


Sure, but this is equivalent to being let go without severence. You have no buffer to get you through thr job finding process.


Severance is a wholly different matter. It's completely unrelated to a noncompete clause.


The stated case is that you could be let go, but will continue to be paid until the noncompete is terminated. The result is that day 1 of job hunting is day 1 of not getting paid. I'm saying this is akin to termination without severence.


I'd love to know where you live that an employer can fire you and expect you to honor a non compete.

The second they stop paying you your obligations end. No judge in the land will prevent you from being unable to earn a living.


I have been given "agreements" to sign in which the non-compete clause is plainly unconditionally worded: no matter what the cause of termination. I don't know whether they expected to enforce it or not. I redlined the part covering "dismissal", and my annotated agreement was not rejected.

This was in Massachusetts.

In the end I did get RIFed. They nailed me by conditioning the severance package on accepting a freshly drafted non-compete. I went along with it because I considered my likelihood of continuing in that line of work to be negligible anyway.


Actually, even in California, in the limited instances in which a non-compete is enforceable, being fired has no bearing on the non-compete's enforceability.


Most of the USA, including Massachusetts (but not California).


You can find a new job if your noncompete is terminated. The problem is that you might have a 12 month non-compete so you might book a 3 month vacation at the beginning because nobody will hire you 12 months in advance.

You're just left in the lurch if your former employer then terminates the noncompete within a month and stops paying you. The alternative of just sitting home for those 12 months doesn't sound great either.


This is a kind of feudalism, where the peasants need to rely on the strength of lords and their knights (lawyers) to enjoy basic freedoms.


>This is a kind of feudalism, where the peasants need to rely on the strength of lords and their knights (lawyers) to enjoy basic freedoms.

Actually, I think it's a hallmark of a free society where consenting adults are able to enter into, or not, any agreements they choose. The problem is that some people make bad choices in the agreements they commit to, or they enter them in bad faith, not intending to honor them, and when the chickens come to roost, we're instructed to feel sorry for them by writers at the New York Times.


I won't say that your definition of a free society is wrong, but I think it's worth pointing out that it doesn't exactly rule out a feudal system.


>I won't say that your definition of a free society is wrong, but I think it's worth pointing out that it doesn't exactly rule out a feudal system.

I didn't provide a "definition" of a free society.


I suppose your post doesn't rule out that 'a free society' might be characterised by more than just the ability to freely enter agreements. However you did fail to distinguish your free society from a feudal system.


Yeah. The feudal arrangement was always understand as "reciprocal" and one can argue, it was pretty good relative to the alternatives at times.


Do you know what a power imbalance is?

You think having your life controlled by a corporation is a sign of a free society?


>Do you know what a power imbalance is?

Yes.

>You think having your life controlled by a corporation is a sign of a free society?

When it comes to me signing a contract that some corporation would like me to sign, I have complete, inviolable power to NOT sign it. The power over my signature is 100% mine.


What if you need that job to make ends meet?


That's the real problem of course: we're dependent on food we can't grow, and houses we can't build, and that makes us unfree. If everybody was automatically provided with the basic necessities, we'd be free to negotiate on a more equal footing.


>What if you need that job to make ends meet?

Then perhaps you should be grateful enough to the company that is saving your bacon that you don't willfully violate contracts you signed with them.


Ha, you don't get it, at all.

You should read the history of labour laws.


Why do you think noncompetes are the hallmark of a free society?


>Why do you think noncompetes are the hallmark of a free society?

You parsed it wrong. I meant to say that consenting adults freely entering (or not) into agreements with other consenting adults is a (not the) hallmark of a free society.

Why do you think that consenting adults freely entering into contracts are analogous to peasants and lords?


The issue is whether people exercise their rights "under the protection" of more powerful (but private) entities. For example, in some of the cases cited in the New York Times, courts acknowledged that non-competes were not to be enforced -- but only after the hiring company went to bat for their new staffer.

If someone enters into an unenforceable agreement, they should be freed of it speedily and inexpensively. Maybe the terms of the agreement are such that its' unenforceability is non-obvious; but it is ultimately the one bringing suit who should bear the cost of wasting everyone's time in that case.


>If someone enters into an unenforceable agreement, they should be freed of it speedily and inexpensively. Maybe the terms of the agreement are such that its' unenforceability is non-obvious; but it is ultimately the one bringing suit who should bear the cost of wasting everyone's time in that case.

Unfortunately, the Democratic party in the US has fought tooth-and-nail against "loser pays" tort reform for decades.


I hope I answered your original question, with regards to the parallel to feudalism.

In a different legal climate it might not play out that way; but in the current one it does.


No, the problem is that sometimes, people are not able to refuse a work agreement. There are plenty of cases where a potential employee essentially has a choice between signing and starving. If the employer knows this, that is no longer an agreement between consenting adults.

If I put a gun to your head, and you then 'consent' to an agreement where you give me money, and I don't shoot you, is that a hallmark of free society?


>No, the problem is that sometimes, people are not able to refuse a work agreement.

That statement has absolutely no basis in reality. It gets trotted out time and time again, however.

>There are plenty of cases where a potential employee essentially has a choice between signing and starving.

Again, that is pure BS. No one starves in the US. The number one health problem is obesity.

>If I put a gun to your head, and you then 'consent' to an agreement where you give me money, and I don't shoot you, is that a hallmark of free society?

If you don't know the difference between an armed robbery and a freely entered agreement, I thinking I'm wasting my time arguing with you.


>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 strategically overdraw money from your bank account or write a check you knew would bounce to get by, then I don't think you know how bad it can get for the "middle" class.


>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.


>You are either being obstinate, or are comically naive.

Perhaps you can show me some evidence to support the ridiculous statement that "plenty of people starve in the US."



My point is that consent is a sliding scale. Armed robbery is at an extreme point on that scale.

For a less extreme point, consider your manager asking something of you in a personal capacity. There is clearly a problematic imbalance of power there. For a slightly worse example, consider sexual harassment. This is not o.k. due to the power imbalance.

In general, consent given under duress isn't valid. It seems facetious to say there is a sharp line where duress ends and 'fair hardship' starts.


You realize of course then that surfs (and their descendants) became surfs via an oath of bandage.

Of course you do.


I suspect they usually became serfs by way of a great warlord saying to a lesser one: here is your territory and these people are your serfs.

Whatever oath there was, was purely pro forma, and the alternative was death or banishment.


All things you can freely choose do in life were already dictated by those who came before you.


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 think it's fine. Dirtier the connotation, the greater the company must feel to fight against it to keep you.


They fight by making mutual agreement that they wont hire each other employees.


Probably should work for neither of them then. Like a workers' strike except on free market level.


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, while the same person being recruited from the general job market wouldn't be.


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


Agreed with the silly use of the name 'poaching'. But how exactly is the state preventing two people voluntarily entering into a contract a good thing?

Its pointless anyway, a first year law student will just rewrite as non-circumvent + no-solicit + NDA agreements.


The problem comes from the market disparity: most employees need the job and have limited bargaining power or legal representation while the company has a whole legal team representing their interests. Similarly, the company has a lot more data points on terms and compensation than the prospective worker.

As a simple example, the Jimmy John's sandwich chain had a no-compete for their employees. Do you think the average person making subs is as comfortable walking away from a job as the company is telling them the terms aren't negotiable?

My favorite fix would simply to be requiring full compensation for the entire term. Intel would pay an architect to sit on the beach rather than work for AMD but nobody would think of trying that for the average developer.


>As a simple example, the Jimmy John's sandwich chain had a no-compete for their employees. Do you think the average person making subs is as comfortable walking away from a job as the company is telling them the terms aren't negotiable?

Its true they did have that contract. However it was never enforced and once news of it broke they dropped it.

It would like never been enforced since its clearly unlawful. Any legal contract must have 5 parts: (a) Offer, (b) Consideration, (c) Term, (d) Good Faith, and (e) Acceptance.

The "Good Faith" provision means that no part of any contract is either for one part or the other. The contract is implied to be "equal" in all parts. Such a tact of getting low-paid workers to sign non-competes clearly violates this, thus why it was basically unenforceable.

Now, just because some company tried to write a dumb contract, should we make all contracts illegal?


We don't know whether they tried to use it and reached an agreement covered by an NDA (do you accept or spend 10X the amount on legal fees?). Similarly, we don't know whether it was ever threatened as part of a labor dispute: I first heard about it in conjunction with the class action lawsuit about unpaid overtime and it's very easy to imagine that the same manager trying to do that wouldn't hesitate to threaten someone's ability to find another job, secure in the knowledge that nobody working that job has the resources to lawyer up.

That power disparity is the fundamental flaw in your argument. The theory you're repeating sounds great as long as the parties have roughly equal power and knowledge, which just isn't true.


> But how exactly is the state preventing two people voluntarily entering into a contract a good thing?

Because those voluntary contracts affect the economy as a whole. By preventing the worker from making use of even their non-proprietary general knowledge, they make the economy less efficient -- especially so when it comes to the formation of new ventures.

And empirically, prohibiting noncompetes works. I understand that California, if we were a separate country, would have the world's seventh (or sixth?) largest economy. I certainly would be very hesitant to accept a job offer in any other state. (Well, someone posted upthread that North Dakota and Oklahoma also prohibit noncompetes, but I don't think I want to live in either of those places, for other reasons.)


> Agreed with the silly use of the name 'poaching'. But how exactly is the state preventing two people voluntarily entering into a contract a good thing?

Because any analysis of contracts that does not take into account the relative power of the parties entering them is an incredibly naive one.


This is just not the way contract interpretation and enforcement works. It never has.

The law has always recognized public policy considerations that sometimes outweigh the benefit of enforcing a particular contract.

I'd be shocked if you didn't agree with some of examples of such contracts. For example, if A contracts with B for B to murder C, A cannot sue B for breaching that contract.

California decided that the public policy of fostering freedom to practice one's profession outweighs the interest in enforcing contractual non-compete provisions. You may not agree.

But, in the end, this is all about public policy goals. Framing the question as about the "state preventing two people voluntarily entering into a contract" isn't quite correct. The question really is whether the state should get itself involved in ENFORCING a particular agreement. Generally, the state will do so because a functioning economy is dependent upon enforceable contracts. But that is just one public policy interest to be weighed against others in particular instances.


Most societies consider that there are certain human rights (the right to make one's livelihood in this case) which should not be subject to voluntarily relinquishing. Do you think it would be a fine thing to allow signing oneself into involuntary servitude, for example?


This prompted me to look at my employee agreement. Sure enough, there it is. I signed it because I needed the job and wasn't asking too many questions.

But this is interesting, I work in an area of the company that isn't really part of their core competency. Meaning that the kinds of firms that would hire me are literally in another sector and wouldn't be considered competitors.

So this fact, that normally manifests as complaints that "management has no idea what we do here" and/or that they "have no business claiming they're in this business," ends up helping me out.


Just for comparison: In Czech republic this clauses are legal, but their duration is limited by law and the ex-employer is required to provide you a compensation to the time that you are limited in the job market.


General rules-of-thumb (IANAL):

- Sign the minimum of documents

- Don't provide full, personally-identifying information unless it's absolutely required

- Negotiate terms of boilerplate agreements if they're too unreasonable / don't apply

- Don't sign a binding arbitration agreement, BA is a worthless/corrupt system that nearly always favors the employer. [0]

- For CA-headquartered companies, refuse to sign NCAs because it creates legal liabilities (ie, could they involuntarily transfer an employee to another state and then fire them to make an NCA apply?)

0. https://www.nytimes.com/2015/11/01/business/dealbook/arbitra...


I've almost always been presented one, and I've always had it removed. It is a certainty I will compete, especially the more I become an "expert" in an industry, it's not a fair expectation. I work for startups, probably tougher at big corps.


I'd just like to point out that there is a case to be made for noncompetes, they're not just a terrible thing that companies do because they can. I recommend reading "The Case for Non-Competes" by David Henderson (http://econlog.econlib.org/archives/2016/11/the_case_for_no....).

Here's a relevant quote (in which the author is actually quoting Aaron McNay):

" Both employers and employees would like to be able to train the employees if the cost of doing so is less than the gains in productivity. However, there is a potential collective action problem here. What happens if the employer provides the training, but the employee then moves onto another job? The employer bears the burden of the training costs, but does not receive any of the benefits. As a result, the employer does not provide the training, and a mutually beneficial trade is not made.

By preventing the employee from being able to move, a non-compete agreement eliminates the collective action problem."

I'm not saying that non-competes are necessarily good, or necessarily bad. It depends on the circumstances. But I do think that a lot of other commenters in this thread do think that non-competes are necessarily bad, and I think that's incorrect.


A contract can already account for training costs if an employee leaves - simply have a clause indicating a charge to the employee for the company's cost of training them if they leave before [date when training is paid for by employment]. This is actually very common in US employment contracts, and supported by case law in many states, including CA: http://www.thelelawblog.com/2016/02/articles/new-legislation...

I don't see how non-competes are a desirable alternative, because they're orthogonal to the training costs problem.


In the example you gave, you could make an argument like that but it'd still only feel any way fair iff:

* It started from the start of the contract/end of the initial training. * It was for a period much shorter than 2 years * It was voided if the employer terminated the contract


Why would it only feel fair based on some "arbitrary" rules you intuitively feel are right? Why not let people negotiate based on their personal situations, and let the market eventually sort out what combination works best?

After all, for high enough salaries, I'd probably agree to very onerous terms.

Specfically about your list, I think the reason the period doesn't usually start from the end of training, but rather the end of employment, is that it is assumed you continue to have access to more training / more confidential information, even if you work for a company for longer than the few months of training. And I certainly hope most people work in a job in which they continue to grow/learn.

As for voiding if the contract if the employee is fired, why make that a condition? Wouldn't that just mean the bar for hiring new employees would be even higher, because if they don't work out, you're both wasting lots of investment, and also running the risk of them taking your methods to a new company?


> Why would it only feel fair based on some "arbitrary" rules you intuitively feel are right? Why not let people negotiate based on their personal situations, and let the market eventually sort out what combination works best?

Because the best solution from an economic position can involve screwing over people in more vulnerable positions?

From TFA we have manual labourers and QC workers in a factory being forced into non-competes. These are not people with much power in the free market.

> Wouldn't that just mean the bar for hiring new employees would be even higher, because if they don't work out, you're both wasting lots of investment, and also running the risk of them taking your methods to a new company?

I mean, if they sucked at following the methods to the point you let them go, surely their attempt at bringing them to a new company would likely backfire


In Sweden the during the non-compete period you have to pay the employee their full wage, which seems like a fair balance.

If it is that important to the company the employee should be remunerated


See also the classic NDAs and Contracts That You Should Never Sign, March 28, 2000 by Joel Spolsky:

https://www.joelonsoftware.com/2000/03/28/ndas-and-contracts...


I'm not entirely sure how this compares to the situation under German (EU?) law:

Generally noncompetes are fairly widespread to varying extents. The default seems to be that you can't compete with your employer while you are employed (whether it's by freelancing on the side, poaching their customers or directly working for another competitor) though in practice employers will generally grant you permission to have a side-job as long as there's no conflict of interest and it doesn't impact your job performance.

However noncompetes terminate once the employment ends. The only way to extend the duration of the noncompete is by having the contract also reimburse you for the duration of that extended noncompete. Both sides can agree to lift that extension but if it's in the contract, the employer will likely have to pay for a certain amount of time whether they want to enforce the noncompete or not.

So in other words, while there may be scenarios where noncompetes impact your ability to find another job while still employed, the second your employment terminates, you're either free or continually being paid an appropriate sum of money.

As a freelancer I had clients that insisted on some form of noncompete, but these were generally only protecting them from me "skipping the middleman" and working for their customers directly -- which even without noncompetes would have created some dodgy situations.

I've actually seen multiple major consulting companies (often international ones or subsidiaries of international ones) that explicitly required a noncompete so vague that it would have practically prevented me from working for any company in the industry while also working for them -- because there would have been just no easy way for me to tell whether I was accidentally working for one of their customers or not. I never signed those but considering that certain companies like to just put into contracts whatever they would love to be able to do without any concern for validity or enforceability, I wonder what the legal situation around those would have looked like.


Last time I was given one of these to sign, it was in a group setting. So, I just didn't turn it in. They never did make a stink about it.

Just because someone gives you a piece of paper to sign, doesn't mean you have to. Wait until it's unavoidable.


Interested to see how this plays in my jurisdiction. Seems they have quite a sane approach in NSW:

http://www.fglaw.com.au/non-compete-employment/



Keep in mind that sometimes a company will hire you into an unrelated job role (evangelist, account manager, etc) until your lockup runs out.


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.


Right to work is very often misunderstood.

Right to work has nothing to do with noncompete contracts.

It means that you cannot be forced to join a union.

https://en.m.wikipedia.org/wiki/Right-to-work_law


Insofar as Florida (Floriduh), a "right to work" state is concerned, this is sadly not correct. Most non-competes are enforceable here :( IAAL but IANYL.


Not a lawyer, but the ones I have spoken to here in SC have told me that's how it worked.


Sadly, "right to work" laws have absolutely nothing to do with non-compete enforceability.


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


That might be it.


Speaking from personal experience ... At the time of signing you can see the upside (the offer), but you can't know the downside, which can be quite significant. It's a poor trade-off. Avoid these unless you get some kind of severance for the period of the agreement. Mere employment as "consideration" is a bad deal.


If you're working in a small industry where specialized skills are required, and firms commonly collaborate, you may encounter unacknowledged/secret non-compete policies. Basically, nobody else will hire you, and they won't tell you why. If you've made some friends, they may tell you what's going on. But there's little recourse.


Can't you sue the companies in question if there is any evidence they're doing that?


Sure, if you have the resources. In my case, it was far more feasible to change careers.

Edit: I did speak with a few attorneys. But they all wanted cash up front. And told me that I had little chance of success.


Can you give an example of an industry like this?


Saying more about my case would reveal too much about my identity. Sorry.

Perhaps others can share.


Software engineering? Like, two years ago? How are you on HN, but missed this? https://www.cnet.com/news/apple-google-others-settle-anti-po...


I'm aware of that. I was asking about a smaller industry with more specialized skills where that would be commonplace.


In Europe these clauses are not enforceable. Whether you sign a contract with such clause or not is irrelevant since it's not a qualified subject of a contract. You can write in your contract whatever you want but only the qualified subjects are binding.


I've signed all the non-compete clauses that where present in my contracts because those clauses are simply null and void.


An alternative point of view, even for those entering the industry: just don't sign a contract with a non-compete clause.

At some point in your career you are going to have to negotiate over terms in your contract. Best to get practice in as soon as the opportunity presents itself.


I had an employer attempt to have me sign an NDA, NCC and, forfeit any rights to software I'd written in the previous 20 years, to them!

Pound sand.

So I was back on the street 2 weeks later.


I think in Germany at least, employers have to pay people for the damages induced by non-compete (the loss of salary/earning potential). Ianal, though.


I am not a lawyer but my advice is generally to ignore it. Most wont care and those who do mostly can't enforce it unless they paid you extra for it.


this shit should be illegal. even small businesses are doing this now. programmers are a dime a dozen and everyone is using open source. fuck all these tech companies they don't have jack shit TO steal and force you to sign away everything anyway




Applications are open for YC Summer 2018

Guidelines | FAQ | Support | API | Security | Lists | Bookmarklet | Legal | Apply to YC | Contact

Search: