5 ms·

Beyond banning them de-jure you've also got to ban them de-facto. "We all know non-competes are unenforceable and illegal." <- Absolutely useless if you can en

by harry8 4y ago

Beyond banning them de-jure you've also got to ban them de-facto. "We all know non-competes are unenforceable and illegal." <- Absolutely useless if you can end up in court. Using unenforceable rights as a deterrant is common and potential future employers get spooked by it even if it is illegal. "Don't hire Jill, Mary is almost as good and has no non-compete. Don't want to go to court even if its unenforceable." There are no consequences for forcing someone to have the stress, expense, time and to secure the financing so that if everything works as it should (which it often doesn't in all the various legal systems) you get only some of that back. If it doesn't work as it should you're toast. Not a nice thing to be hit with when the law is clearly designed that you should not be hit with anything at all. For an individual or a startup it matters. For a large revenue incumbant they have people employed to abuse the system like that and the business expense of doing it is trivial, more than worth it. The law may exist so that the strongest do not always get their way - but this is an ideal with many exceptions including this one. Ban away, but with no consequences for abuse and all measurements for the abused being the magnitude of the downside alone, no upside possible you don't get the result you're looking for. Summary dismissal with costs, compensation and the potential to be branded a vexatious litigant so it is more difficult to bring any court action against anyone would be a real consequence for abusing the rules. Is the best one? Is it fair? Dunno. What we have now in most countries sure isn't.

ghaff 4y ago
I worked for a very small company. We wouldn’t hire anyone with a non-compete end of story end of discussion. Just wasn’t a risk or cost management was willing to even entertain.
- Eleison23 4y ago
  How would you know they had one? What is the process for disclosing or discovering non-competes? Ostensibly part of a private citizen's employment contract, that's a confidential document. So what basis would a prospective employer have to request a copy, and how would said third party verify its authenticity?
  - ghaff 4y ago
    You ask them. And you probably have little interest in seeing a copy in my example. Just if there is one. Yes, they can presumably lie to you. But if you then so much as get a letter from a lawyer at that point, you fire them at a minimum.
  - omginternets 4y ago
    Most contracts I’ve signed have language to the effect of “the employee is not bound to any covenants that could restrict his ability to provide his services to the company”, which would include noncompetes. Of course, noncompetes being unenforceable make for a good argument that one is not, in fact, bound by that covenant. In practice, I’ve always just answered “no” to the question on this basis. If any former employer behaves in such a way as to get me fired from my present job, I’m rather optimistic about my prospects for legal remedy.
Cupertino95014 4y ago
I've never heard of a court case involving a noncompete. Have you? (of course, I live in California.) It's maybe a little different if you're a chef and you've spent a lifetime mastering a particular recipe which is very hard to get right. You teach it to someone, and he goes out and opens his own restaurant selling that same dish. You can see the intuitive appeal of a noncompete, even if it's usually ineffective, and actually harmful to a high-tech ecosystem.
- singleshot_ 4y ago
  I have heard of such cases. The situation regarding the difficult recipe could be handled under the Uniform Trade Secret Act, as adopted in various states, or under common law related to tortious misappropriation of classified information. This might be a place where restrictive covenants not to compete aren’t really relevant, and if they disappeared, employees might still have all the tools they need to protect their interests.
- areyousure 4y ago
  Brown v. TGS Management Co., LLC is an interesting court case involving a "noncompete" from California: https://law.justia.com/cases/california/court-of-appeal/2020/g058323.html https://law.justia.com/cases/california/court-of-appeal/2020...
- nfriedly 4y ago
  I have a friend who got a new job, then gave it up because his previous employer "reminded" him that he had signed a non-compete. Now, we're both in Ohio, where it likely would have been enforceable, but the point I'm making is that a court case wasn't necessary - the mere threat was sufficient.
  - sokoloff 4y ago
    Had the same reminder when I changed jobs (in MA) ages ago. That reminder went to me and to the general counsel of my new employer. Got hauled into a meeting with HR and general counsel where they both said basically “we got the same letter; we don’t think we compete nor would a court find we do; we’re sending them the following letter; don’t worry about it and get back to work.”
oolveea 4y ago
Dejure harry defacto

by harry8 4y ago

ghaff 4y ago

I worked for a very small company. We wouldn’t hire anyone with a non-compete end of story end of discussion. Just wasn’t a risk or cost management was willing to even entertain.

Eleison23 4y ago
How would you know they had one? What is the process for disclosing or discovering non-competes? Ostensibly part of a private citizen's employment contract, that's a confidential document. So what basis would a prospective employer have to request a copy, and how would said third party verify its authenticity?
- ghaff 4y ago
  You ask them. And you probably have little interest in seeing a copy in my example. Just if there is one. Yes, they can presumably lie to you. But if you then so much as get a letter from a lawyer at that point, you fire them at a minimum.
- omginternets 4y ago
  Most contracts I’ve signed have language to the effect of “the employee is not bound to any covenants that could restrict his ability to provide his services to the company”, which would include noncompetes. Of course, noncompetes being unenforceable make for a good argument that one is not, in fact, bound by that covenant. In practice, I’ve always just answered “no” to the question on this basis. If any former employer behaves in such a way as to get me fired from my present job, I’m rather optimistic about my prospects for legal remedy.

Cupertino95014 4y ago

I've never heard of a court case involving a noncompete. Have you? (of course, I live in California.) It's maybe a little different if you're a chef and you've spent a lifetime mastering a particular recipe which is very hard to get right. You teach it to someone, and he goes out and opens his own restaurant selling that same dish. You can see the intuitive appeal of a noncompete, even if it's usually ineffective, and actually harmful to a high-tech ecosystem.

singleshot_ 4y ago
I have heard of such cases. The situation regarding the difficult recipe could be handled under the Uniform Trade Secret Act, as adopted in various states, or under common law related to tortious misappropriation of classified information. This might be a place where restrictive covenants not to compete aren’t really relevant, and if they disappeared, employees might still have all the tools they need to protect their interests.
areyousure 4y ago
Brown v. TGS Management Co., LLC is an interesting court case involving a "noncompete" from California: https://law.justia.com/cases/california/court-of-appeal/2020/g058323.html https://law.justia.com/cases/california/court-of-appeal/2020...
nfriedly 4y ago
I have a friend who got a new job, then gave it up because his previous employer "reminded" him that he had signed a non-compete. Now, we're both in Ohio, where it likely would have been enforceable, but the point I'm making is that a court case wasn't necessary - the mere threat was sufficient.
- sokoloff 4y ago
  Had the same reminder when I changed jobs (in MA) ages ago. That reminder went to me and to the general counsel of my new employer. Got hauled into a meeting with HR and general counsel where they both said basically “we got the same letter; we don’t think we compete nor would a court find we do; we’re sending them the following letter; don’t worry about it and get back to work.”

oolveea 4y ago

Dejure harry defacto