3 ms·

> You might think these things are only a pain for people like me who work in the tech and creative space. You’d be wrong. Employees also locked into their jobs

by tzs 2y ago

> You might think these things are only a pain for people like me who work in the tech and creative space. You’d be wrong. Employees also locked into their jobs include hairdressers, janitors, security guards, and fast-food workers. Who knew that the ability to say, “Would you like fries with that?” was proprietary? Not me. The Judge says they can't enforce their new ban. But does that stop them from trying to stop non-competes using prior law? For example the Sherman Act can cover non-competes. If the FTC started suing hair salons and fast food restaurants under that it might cause enough problems for those businesses that they'd stop using such agreements.

flanked-evergl 2y ago
> But does that stop them from trying to stop non-competes using prior law? It's not a judge's job to do that. The plaintiff will have to make the case.
willcipriano 2y ago
Most non competes are signed on your first day of work after you quit your previous job (under duress) and provide no consideration. Basic contract law should have thrown these out long ago.
- flanked-evergl 2y ago
  In my experience, "non competes" form part of an employment contract, as a clause of the employment contract, and are not an entirely separate contract. In contract law, the requirement for consideration applies to the contract as a whole, not to each individual clause. An employment contract, as a whole, definitionally provides consideration. Can you give some examples where "non competes" are signed independently of your employment contracts without consideration? The quoted article refers to them as clauses, and the FTC rule in question is also titled the "Non-Compete Clause Rule" [1]. [1] https://www.federalregister.gov/documents/2024/05/07/2024-09171/non-compete-clause-rule https://www.federalregister.gov/documents/2024/05/07/2024-09...
  - willcipriano 2y ago
    I've never had a real employment contract. Most Americans haven't. It's typically at will employment. Every job I've had is as I've described. First day you go into HR to do your W2, set up insurance, 401K, etc and then you are also handed a surprise non complete. Don't want to sign it? No job. If it was part of the employment contract you'd be aware of it during the negotiations. Since you haven't even seen the paperwork until this point, how could you have proper consideration for it rolled up in the employment agreement? Why is it even a separate document if that is the case?
    - flanked-evergl 2y ago
      In this case, it sounds like the non-compete is a clause to an implied contract then. And every single employment contract I have signed had a non-compete that was not mentioned during negotiation, and in every single case the non-competes could not be negotiated away either — that does not mean they have no consideration. > Since you haven't even seen the paperwork until this point, how could you have proper consideration for it rolled up in the employment agreement? You are using the word consideration in two different senses (i.e. equivocating in the technical sense) [1][2]. A contract must have consideration, but the consideration it requires is consideration in the sense of "A payment or other recompense for something done" not "The thought process of considering, of taking multiple or specified factors into account (with of being the main corresponding adposition)". If you want consideration in the second sense here, just refuse to sign the clause until you have sufficiently considered it. But if you do sign it, it does not mean it's without consideration in the first sense here. [1]: https://www.law.cornell.edu/wex/consideration https://www.law.cornell.edu/wex/consideration [2]: https://en.wiktionary.org/wiki/consideration https://en.wiktionary.org/wiki/consideration
      - willcipriano 2y ago
        Implied contracts aren't worth the paper they aren't written on. That won't hold up anywhere. > refuse to sign the clause until you have sufficiently considered Sure, but you just told me to quit my job and sent me an offer letter with your terms and "forgot" that not working for X years unpaid after I leave is one of them. In fact you probably did the opposite, you called it "at will" when it clearly isn't, for me at least. Perhaps you don't sign and sue for promissory estoppel? Wouldn't it be simpler for employers to just define this sort of thing at the start instead of being sneaky about it?

by tzs 2y ago

flanked-evergl 2y ago

> But does that stop them from trying to stop non-competes using prior law? It's not a judge's job to do that. The plaintiff will have to make the case.

willcipriano 2y ago

Most non competes are signed on your first day of work after you quit your previous job (under duress) and provide no consideration. Basic contract law should have thrown these out long ago.

flanked-evergl 2y ago
In my experience, "non competes" form part of an employment contract, as a clause of the employment contract, and are not an entirely separate contract. In contract law, the requirement for consideration applies to the contract as a whole, not to each individual clause. An employment contract, as a whole, definitionally provides consideration. Can you give some examples where "non competes" are signed independently of your employment contracts without consideration? The quoted article refers to them as clauses, and the FTC rule in question is also titled the "Non-Compete Clause Rule" [1]. [1] https://www.federalregister.gov/documents/2024/05/07/2024-09171/non-compete-clause-rule https://www.federalregister.gov/documents/2024/05/07/2024-09...
- willcipriano 2y ago
  I've never had a real employment contract. Most Americans haven't. It's typically at will employment. Every job I've had is as I've described. First day you go into HR to do your W2, set up insurance, 401K, etc and then you are also handed a surprise non complete. Don't want to sign it? No job. If it was part of the employment contract you'd be aware of it during the negotiations. Since you haven't even seen the paperwork until this point, how could you have proper consideration for it rolled up in the employment agreement? Why is it even a separate document if that is the case?
  - flanked-evergl 2y ago
    In this case, it sounds like the non-compete is a clause to an implied contract then. And every single employment contract I have signed had a non-compete that was not mentioned during negotiation, and in every single case the non-competes could not be negotiated away either — that does not mean they have no consideration. > Since you haven't even seen the paperwork until this point, how could you have proper consideration for it rolled up in the employment agreement? You are using the word consideration in two different senses (i.e. equivocating in the technical sense) [1][2]. A contract must have consideration, but the consideration it requires is consideration in the sense of "A payment or other recompense for something done" not "The thought process of considering, of taking multiple or specified factors into account (with of being the main corresponding adposition)". If you want consideration in the second sense here, just refuse to sign the clause until you have sufficiently considered it. But if you do sign it, it does not mean it's without consideration in the first sense here. [1]: https://www.law.cornell.edu/wex/consideration https://www.law.cornell.edu/wex/consideration [2]: https://en.wiktionary.org/wiki/consideration https://en.wiktionary.org/wiki/consideration
    - willcipriano 2y ago
      Implied contracts aren't worth the paper they aren't written on. That won't hold up anywhere. > refuse to sign the clause until you have sufficiently considered Sure, but you just told me to quit my job and sent me an offer letter with your terms and "forgot" that not working for X years unpaid after I leave is one of them. In fact you probably did the opposite, you called it "at will" when it clearly isn't, for me at least. Perhaps you don't sign and sue for promissory estoppel? Wouldn't it be simpler for employers to just define this sort of thing at the start instead of being sneaky about it?