3 ms·

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 h

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?
      - flanked-evergl 2y ago
        > Implied contracts aren't worth the paper they aren't written on. That won't hold up anywhere. Okay, problem solved then. You don't have a non-compete clause because it won't hold up anywhere. Still has no bearing whether your contract and its clauses have consideration. > Perhaps you don't sign and sue for promissory estoppel? Sure. Good luck.
        willcipriano 2y ago
        They aren't implied. They are physical documents presented and signed after the 'employment contract' has already began to be executed. Hell that 'employment contract' is at will 99% of the time, any party can end it at point for any reason, but that doesn't apply to the implied non-compete portion signed after employment? What? It's nonsense all the way down.
        flanked-evergl 2y ago
        If you sign a non-compete clause in the context of employment, even at will employment, the continued employment can serve as consideration for the clause. It's not without consideration. If you sign a non-compete clause outside the context of employment, and there is no consideration for it, i.e. no continued employment or any other consideration, it's without consideration. Good luck with the novel legal theories in court, but I don't think courts are too fond of equivocation.

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?
    - flanked-evergl 2y ago
      > Implied contracts aren't worth the paper they aren't written on. That won't hold up anywhere. Okay, problem solved then. You don't have a non-compete clause because it won't hold up anywhere. Still has no bearing whether your contract and its clauses have consideration. > Perhaps you don't sign and sue for promissory estoppel? Sure. Good luck.
      - willcipriano 2y ago
        They aren't implied. They are physical documents presented and signed after the 'employment contract' has already began to be executed. Hell that 'employment contract' is at will 99% of the time, any party can end it at point for any reason, but that doesn't apply to the implied non-compete portion signed after employment? What? It's nonsense all the way down.
        flanked-evergl 2y ago
        If you sign a non-compete clause in the context of employment, even at will employment, the continued employment can serve as consideration for the clause. It's not without consideration. If you sign a non-compete clause outside the context of employment, and there is no consideration for it, i.e. no continued employment or any other consideration, it's without consideration. Good luck with the novel legal theories in court, but I don't think courts are too fond of equivocation.