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Sometimes I feel like corporations do things just because their lawyers are cargo culting and adding clauses because everyone else does rather than some logical

by donatj 3y ago

Sometimes I feel like corporations do things just because their lawyers are cargo culting and adding clauses because everyone else does rather than some logical reason. My sister worked at Subway and had to sign a noncompete that she wouldn’t work at another sandwich shop for three years. Are they really afraid she’s going to steal their secrets of placing meat on bread? The more cynical will certainly assume malice, that the company did this to keep you from leaving. It particularly at the time it was not hard at all to find new fast food workers, and I am a firm believer in Hanlon’s Razor and never assume malice when incompetence will do. I genuinely think the explanation could just be Subway’s lawyers were like “everyone else is doing noncompetes”.

malux85 3y ago
Is there a version of Hanlons Razor but instead of incompetence, it’s money? I’m a firm believer in that. The clause was probably put in there so the lawyers could bill more hours. I can easily imagine a legal firm noticing a drop in billable hours so they start reaching out to existing clients, throwing in a bit of fear, saying everyone is putting non-competes in their agreements you should too. Boom, all clients get billed extra that month, I wouldn’t call this incompetence, but greed
- nonethewiser 3y ago
  > Is there a version of Hanlons Razor but instead of incompetence, it’s money? For businesses, which aim to make money, isnt that simply competence? Or greed when taken to an extreme. Basically “companies will act in their best interest.”
  - malux85 3y ago
    No, that's too reductive - the behaviour is not solely explained by a unidimensional scalar like competence because there are actions that a greedy unethical competent company would take that another non-greedy ethical company would not take - so theres more dimensions than just competence.
    - fleischhauf 3y ago
      also, in case of the billable hours, the lawyers might do it due to monetary incentives, but subway might be malicious (or have other reasons to do it)
- kuchenbecker 3y ago
  Malux razor: Never attribute to incompetence that which can be explained by Money.
  - DangitBobby 3y ago
    Fleecing people for money is malicious though
- deleted 3y ago
  [deleted]
- bastard_op 3y ago
  I'm sure one can find plenty to say about this in the Ferengi Rules of Acquisition that probably sum up even our corporate insanity best. https://memory-alpha.fandom.com/wiki/Rules_of_Acquisition https://memory-alpha.fandom.com/wiki/Rules_of_Acquisition
- fnord123 3y ago
  > Is there a version of Hanlons Razor but instead of incompetence, it’s money? Cui bono.
- drhagen 3y ago
  I always liked to phrase it as: "Never attribute to incompetence that which is adequately explained by incentives." People like Hanlon's razor because it still lets them insult people they don't like. "incompetent" and "stupid" work about as well as "malicious" and "evil". I don't think anyone will ever give a name to a statement so...unsatisfying.
avar 3y ago
Let's say your sister and her coworker form a union, and Subway fires them. Now they also won't have the legal ability to simply open a new sandwich shop right next to Subway. I.e. you're imagining that non-competes are there to protect proprietary know-how. That's mostly true for some companies, but for others (e.g. Subway) it's a wedge guarding them against the collective action of their employees.
- oldandboring 3y ago
  > it's a wedge guarding them Anybody reading this from Westchester County, NY will join me in chuckling about how appropriate the term "wedge" is in a discussion about making sandwiches on long loaves of bread.
- kube-system 3y ago
  > you're imagining that non-competes are there to protect proprietary know-how. Legally speaking, that is often the case. Many states require a noncompete to have a “legitimate business reason”, and proprietary knowledge is the most common legitimate reason used. I suspect judges in most states would invalidate a noncompete for a sandwich shop worker. The legal purpose of these clauses is to keep high paid workers from stealing customer lists or business secrets. The legal system does tend to frown on them being used for rank and file. Many employers just use them as an empty threat to manipulate people, because they know few people are going to hire a lawyer over it. I mean, even from a practical perspective, noncompetes are pretty weak unless the employee is the kind of person who would make the news when they join a new company. You can always leave a company and tell them nothing about where you’re going. A subway franchise ain’t gonna hire some PI to figure out where a former front-line employee got a new job.
  - Hizonner 3y ago
    ... assuming a sandwich shop worker had the legal acumen to realize that and the financial resources to get it in front of a judge and/or to carry it through to completion... especially because there's probably also an arbitration clause that at least initially puts you in front of an arbitrator very much biased in the sandwich shop's favor. Just having the piece of paper to wave around is valuable even if it's totally unenforceable. Which is why, at a minimum, any lawyer who participates in drafting something like that should be removed from the profession. And most likely there should be criminal penalties for the corporate management involved.
jjj123 3y ago
Is it possible it’s just about power? Non-competes make it harder to find a new job. Employers want it to be hard to find a new job, since that means it’s hard to leave your current job even if the pay/hours/whatever is poor.
habosa 3y ago
Lawyers will attempt to put the most advantageous terms possible in any contract they write. It’s just what they do. It’s not malice or incompetence. It’s training.
- mydogcanpurr 3y ago
  >It’s not malice or incompetence. It’s training. Am I really supposed to believe that corporate lawyers don't have personal agency? You can defend it however you want, but ultimately I believe that people are responsible for their actions.
nostrademons 3y ago
The lawyers are largely copying & pasting. They come up with a template that works for most of their clients and then re-use it when a new one comes along. I worked in Massachusetts (which allows non-competes) early on in my career, and at one point took my contract to a lawyer. He was like "This was written by a California law firm. It has clauses that are specific to California law." (One of them was that it specifically did not have a non-compete, carved out in the contract.)
FpUser 3y ago
So those supposedly smart people do not realize that said claim if followed is like semi slavery? Of course they do. They just do not give a flying fuck. Give them freedom and they will sell you for organs smiling all the while.
ravenstine 3y ago
> Sometimes I feel like corporations do things just because their lawyers are cargo culting and adding clauses because everyone else does rather than some logical reason. Not sure so much on the cargo culting aspect, but in essence, I am convinced that this phenomenon is effectively true. If corporations were run entirely by lawyers, the likelihood that any corporation would take risks that would lead to innovation would be approaching zero. Of course, corporations without laws would run amok, but that's beside the point. I've worked at companies that were absolutely afraid to do anything that the legal department found troublesome, holding them back from risks that might have been worthwhile and wouldn't have been apocalyptic had anything gone wrong. It's a shame to see that happen, and I suppose that's why the current paradigm needs to keep generating startups in order to drive innovation. Though we really haven't been seeing much innovation as of late. There may be some cargo culting of noncompetes, but it seems more likely that noncompetes are inherently in the best interest of the business from the point of view of the lawyers, and businesses see noncompetes as a sort of moat against competition. Both are fairly reasonable perspectives, though neither is necessarily true in reality, which is why businesses don't necessarily have to listen to their legal team on every decision.
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by donatj 3y ago

malux85 3y ago

Is there a version of Hanlons Razor but instead of incompetence, it’s money? I’m a firm believer in that. The clause was probably put in there so the lawyers could bill more hours. I can easily imagine a legal firm noticing a drop in billable hours so they start reaching out to existing clients, throwing in a bit of fear, saying everyone is putting non-competes in their agreements you should too. Boom, all clients get billed extra that month, I wouldn’t call this incompetence, but greed

nonethewiser 3y ago
> Is there a version of Hanlons Razor but instead of incompetence, it’s money? For businesses, which aim to make money, isnt that simply competence? Or greed when taken to an extreme. Basically “companies will act in their best interest.”
- malux85 3y ago
  No, that's too reductive - the behaviour is not solely explained by a unidimensional scalar like competence because there are actions that a greedy unethical competent company would take that another non-greedy ethical company would not take - so theres more dimensions than just competence.
  - fleischhauf 3y ago
    also, in case of the billable hours, the lawyers might do it due to monetary incentives, but subway might be malicious (or have other reasons to do it)
kuchenbecker 3y ago
Malux razor: Never attribute to incompetence that which can be explained by Money.
- DangitBobby 3y ago
  Fleecing people for money is malicious though
deleted 3y ago
[deleted]
bastard_op 3y ago
I'm sure one can find plenty to say about this in the Ferengi Rules of Acquisition that probably sum up even our corporate insanity best. https://memory-alpha.fandom.com/wiki/Rules_of_Acquisition https://memory-alpha.fandom.com/wiki/Rules_of_Acquisition
fnord123 3y ago
> Is there a version of Hanlons Razor but instead of incompetence, it’s money? Cui bono.
drhagen 3y ago
I always liked to phrase it as: "Never attribute to incompetence that which is adequately explained by incentives." People like Hanlon's razor because it still lets them insult people they don't like. "incompetent" and "stupid" work about as well as "malicious" and "evil". I don't think anyone will ever give a name to a statement so...unsatisfying.

avar 3y ago

Let's say your sister and her coworker form a union, and Subway fires them. Now they also won't have the legal ability to simply open a new sandwich shop right next to Subway. I.e. you're imagining that non-competes are there to protect proprietary know-how. That's mostly true for some companies, but for others (e.g. Subway) it's a wedge guarding them against the collective action of their employees.

oldandboring 3y ago
> it's a wedge guarding them Anybody reading this from Westchester County, NY will join me in chuckling about how appropriate the term "wedge" is in a discussion about making sandwiches on long loaves of bread.
kube-system 3y ago
> you're imagining that non-competes are there to protect proprietary know-how. Legally speaking, that is often the case. Many states require a noncompete to have a “legitimate business reason”, and proprietary knowledge is the most common legitimate reason used. I suspect judges in most states would invalidate a noncompete for a sandwich shop worker. The legal purpose of these clauses is to keep high paid workers from stealing customer lists or business secrets. The legal system does tend to frown on them being used for rank and file. Many employers just use them as an empty threat to manipulate people, because they know few people are going to hire a lawyer over it. I mean, even from a practical perspective, noncompetes are pretty weak unless the employee is the kind of person who would make the news when they join a new company. You can always leave a company and tell them nothing about where you’re going. A subway franchise ain’t gonna hire some PI to figure out where a former front-line employee got a new job.
- Hizonner 3y ago
  ... assuming a sandwich shop worker had the legal acumen to realize that and the financial resources to get it in front of a judge and/or to carry it through to completion... especially because there's probably also an arbitration clause that at least initially puts you in front of an arbitrator very much biased in the sandwich shop's favor. Just having the piece of paper to wave around is valuable even if it's totally unenforceable. Which is why, at a minimum, any lawyer who participates in drafting something like that should be removed from the profession. And most likely there should be criminal penalties for the corporate management involved.

jjj123 3y ago

Is it possible it’s just about power? Non-competes make it harder to find a new job. Employers want it to be hard to find a new job, since that means it’s hard to leave your current job even if the pay/hours/whatever is poor.

habosa 3y ago

Lawyers will attempt to put the most advantageous terms possible in any contract they write. It’s just what they do. It’s not malice or incompetence. It’s training.

mydogcanpurr 3y ago
>It’s not malice or incompetence. It’s training. Am I really supposed to believe that corporate lawyers don't have personal agency? You can defend it however you want, but ultimately I believe that people are responsible for their actions.

nostrademons 3y ago

The lawyers are largely copying & pasting. They come up with a template that works for most of their clients and then re-use it when a new one comes along. I worked in Massachusetts (which allows non-competes) early on in my career, and at one point took my contract to a lawyer. He was like "This was written by a California law firm. It has clauses that are specific to California law." (One of them was that it specifically did not have a non-compete, carved out in the contract.)

FpUser 3y ago

So those supposedly smart people do not realize that said claim if followed is like semi slavery? Of course they do. They just do not give a flying fuck. Give them freedom and they will sell you for organs smiling all the while.

ravenstine 3y ago

> Sometimes I feel like corporations do things just because their lawyers are cargo culting and adding clauses because everyone else does rather than some logical reason. Not sure so much on the cargo culting aspect, but in essence, I am convinced that this phenomenon is effectively true. If corporations were run entirely by lawyers, the likelihood that any corporation would take risks that would lead to innovation would be approaching zero. Of course, corporations without laws would run amok, but that's beside the point. I've worked at companies that were absolutely afraid to do anything that the legal department found troublesome, holding them back from risks that might have been worthwhile and wouldn't have been apocalyptic had anything gone wrong. It's a shame to see that happen, and I suppose that's why the current paradigm needs to keep generating startups in order to drive innovation. Though we really haven't been seeing much innovation as of late. There may be some cargo culting of noncompetes, but it seems more likely that noncompetes are inherently in the best interest of the business from the point of view of the lawyers, and businesses see noncompetes as a sort of moat against competition. Both are fairly reasonable perspectives, though neither is necessarily true in reality, which is why businesses don't necessarily have to listen to their legal team on every decision.

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