6 ms·
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 o
by etjossem 9y ago
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.
- stale2002 9y agoIt 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.
- juiyout 9y agoSame here in Taiwan. Court has ruled more than once that non-complete cannot be applied to any employee who is not top-level executive.
- etjossem 9y ago> 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.
- deaddodo 9y agoYour 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.
- pfarnsworth 9y agoBut 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?
- ulucs 9y agoIt'd be thrown out immediately anyway, due to having no legal basis (at least in the mainland European civil law systems)
- palunon 9y agoCalifornia doesn't have a mainland European civil law system.
- jimsug 9y agoYou 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.
- deaddodo 9y agoThe 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.
- deaddodo 9y agoThey'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.
- sroussey 9y agoBeyond that, not just the clause is unenforceable, it invalidates the whole contract.
- ygra 9y agoIsn't there usually a clause at the end stating that even if some parts are unenforceable, the rest of the contract still holds?
- justinjlynn 9y agoYes, typically, there is a 'severability' clause that encodes that.
- Chris2048 9y agoWouldn't that clause be voided too?
- itchyouch 9y agoThe severability clause is what keeps illegal clauses from invalidating the whole contract.
- sroussey 9y agoYes, 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.
- Joeri 9y agoWhat if the law changes out from underneath you? Better not to have it in the contract at all.
- m-j-fox 9y agoWasn't this a plot point in Silicon Valley?
- Double_a_92 9y agoYes it was. "Silicon Valley" is a series about a start up, for anyone that doesn't know.
- cryptonector 9y agoBe careful. You might have trouble if you later move to another state and keep your job. Or if California changes its rules.