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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

by siegel 9y ago

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?

AndrewKemendo 9y ago
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.
- siegel 9y ago
  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?
  - AndrewKemendo 9y ago
    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.

by siegel 9y ago

AndrewKemendo 9y ago

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.

siegel 9y ago
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?
- AndrewKemendo 9y ago
  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.