My deli meats contain trade secrets?
October 14, 2014 11:56 AM   Subscribe

Sure, highly paid tech workers often have to sign non-compete clauses when they hire on at a new firm, and some people think this is a problem. But what about when it's fast food employees? posted by selfnoise (129 comments total) 16 users marked this as a favorite
 
The wall street journal story is paywalled.
posted by bswinburn at 12:00 PM on October 14, 2014


Christ, that's ridiculous. I worked at Jimmy John's about ten years ago and I remember signing an NDA, but definitely not a non-compete.
posted by griphus at 12:06 PM on October 14, 2014 [2 favorites]


Slavery used to be much less subtle.
posted by jsavimbi at 12:06 PM on October 14, 2014 [44 favorites]


The wall street journal story is paywalled.

Sorry about that, my fault. Something like this gets the same gist.
posted by selfnoise at 12:07 PM on October 14, 2014 [1 favorite]


The non-compete clause is sheer assholery, but confidentiality? Over sandwich-making? The fuck?
posted by Holy Zarquon's Singing Fish at 12:07 PM on October 14, 2014 [4 favorites]


I'm floored that there are non-compete agreements for minimum wage service jobs.
posted by naju at 12:08 PM on October 14, 2014 [28 favorites]


The "Employee agrees to reimburse Employer and JJF for all costs and expenses, including attorneys' fees that Employer or JJF incur to enforce this agreement against the Employee" strikes me as even more egregious.
posted by cardboard at 12:09 PM on October 14, 2014 [24 favorites]


The way I make sandwiches is unique.
posted by jeather at 12:09 PM on October 14, 2014


...but confidentiality? Over sandwich-making? The fuck?

When I worked there, the entire NDA basically amounted to "don't tell people what's in the tuna salad."
posted by griphus at 12:10 PM on October 14, 2014


Look, pledge your intelligence to Jimmy Johns, the Provider Of Jobs and Maker Of Sandwiches, yes kiss the photo, and swear on your life to never darken the doors of false idols and french fry pushovers, keep the crystal mystery entrusted to you deep within lest the dark forces become set against you. Now let us pray.
posted by The Whelk at 12:11 PM on October 14, 2014 [16 favorites]


the fact that you have not already announced the contents isn't very punk rock of you griphus
posted by poffin boffin at 12:11 PM on October 14, 2014 [16 favorites]


"don't tell people what's in the tuna salad."

I'm guessing ...not Tuna.
posted by The Whelk at 12:11 PM on October 14, 2014 [3 favorites]


It's people.
posted by griphus at 12:12 PM on October 14, 2014 [57 favorites]


When I worked there, the entire NDA basically amounted to "don't tell people what's in the tuna salad."

So...?
posted by ChurchHatesTucker at 12:12 PM on October 14, 2014


Non-compete agreements are such unbelievable bullshit, and I'm so glad they're illegal in California. (I had to toe-up with my employer over this, as they are not located in CA, and I could have signed it knowing it was unenforceable, but I decided I was okay dying on that hill if I had to.)
posted by Lyn Never at 12:14 PM on October 14, 2014 [6 favorites]


It's tuna, but not the fish. The... other kind of tuna.
posted by Rock Steady at 12:14 PM on October 14, 2014 [2 favorites]


"don't tell people what's in the tuna salad."

That's find. I don't want to know what's in the tuna salad.
posted by MrGuilt at 12:14 PM on October 14, 2014 [3 favorites]


Oh my god, the guy in the first photo is a good friend of mine - now moved on to bigger and better things. He worked with some managers who were super sketch - always making people work sick, for one thing, which is not what you want when they are, like, breathing into your food.
posted by Frowner at 12:15 PM on October 14, 2014 [3 favorites]


"don't tell people what's in the tuna salad."

Regret?
posted by naju at 12:15 PM on October 14, 2014 [12 favorites]


Look, if we don't stop people from using their bootstraps, then everyone will be pulling themselves up all the time and then what will we do??
posted by bleep at 12:16 PM on October 14, 2014 [16 favorites]


"don't tell people what's in the tuna salad."


Tears.
posted by Huck500 at 12:17 PM on October 14, 2014 [6 favorites]


Put this together with relatively new unemployment rules in states like mine that allow companies to deny unemployment benefits on the basis of any behavior that doesn't consciously consider potential negative impacts to a company's business interests during non-working hours, and in some states, we're all ready to be wrapped up, tied with a bow, and delivered.
posted by saulgoodman at 12:19 PM on October 14, 2014 [7 favorites]




I remember signing a non-compete agreement when I worked at bowling alley for a breath above minimum wage 10 years ago. I knew dozens of people who signed the same agreement that went on to break those term, GM's and other high-up types included. It struck me as something that "could" be used if necessary, but in general nobody really cared.
posted by dudemanlives at 12:22 PM on October 14, 2014


Enforceable non-competes should be required by law to include compensation equal to/greater than the opportunity cost for the time period in which they're in effect. In practice, a floor for that is probably an employee's wage/salary when they leave an employer.

And I half wonder if a ballsy lawyer couldn't make a case that a non-compete constitutes a time/place/manner restriction and someone bound by it is therefore an employee (and should be paid as such).
posted by weston at 12:22 PM on October 14, 2014 [15 favorites]


my tuna salad don't want none unless u got buns hon
posted by poffin boffin at 12:24 PM on October 14, 2014 [4 favorites]


Jimmy John's was also being a huge asshole in regards to the ACA, if I remember right.

It all makes me sad because I actually liked having sandwich delivery for the days when I don't bring my own lunch and my wife has the car. If you leave out/lighten the mayo and get it breadless their sandwiches aren't too bad healthwise.
posted by kmz at 12:24 PM on October 14, 2014 [1 favorite]


I worked for a chain and, when I started, I already knew how to cut sandwiches their way. This really impressed the manager, but the owner pointed to the sign and showed me that it was patented. He said it was okay as long as I wasn't trying to sell it and I was working there now anyway, but that I should remember I couldn't use the patented procedure anywhere else.
posted by acoutu at 12:25 PM on October 14, 2014 [17 favorites]


I'm guessing ...not Tuna.

Toonah™
posted by Thorzdad at 12:26 PM on October 14, 2014 [6 favorites]


naju: ""don't tell people what's in the tuna salad."

Remorse?
"

Crayoniasse.
posted by boo_radley at 12:27 PM on October 14, 2014 [6 favorites]


How can one patent cutting sandwiches? What could possibly be unique about it?
posted by jeather at 12:27 PM on October 14, 2014 [2 favorites]


Unenforceable non-competes (for instance, lots of companies in California have them, despite CA law making them worthless) strike me as way less ethical than the enforceable kind. "We know (or should know, because we're a big company with lawyers) that this doesn't mean anything, but we're hoping you don't, and won't have the resources to find out and push back."
posted by spaceman_spiff at 12:28 PM on October 14, 2014 [19 favorites]


The free market will solve this...

...wait this is the free market solution?!
posted by 2bucksplus at 12:28 PM on October 14, 2014 [5 favorites]


If you leave out/lighten the mayo and get it breadless their sandwiches aren't too bad healthwise.

If you get it breadless, is it a sandwich?
posted by Faint of Butt at 12:28 PM on October 14, 2014 [12 favorites]


And thus Jimmy John was enlightened.
posted by griphus at 12:32 PM on October 14, 2014 [7 favorites]


"We know (or should know, because we're a big company with lawyers) that this doesn't mean anything, but we're hoping you don't, and won't have the resources to find out and push back."

Burns: Are you acquainted with our state's stringent usury laws?
Homer: [slowly] Usury?
Burns: Oh, silly me! I must've just made up a word that doesn't exist.
posted by griphus at 12:33 PM on October 14, 2014 [49 favorites]


How can one patent cutting sandwiches? What could possibly be unique about it?

subway patented the idea of a footlong sandwich even though their footlong is not actually 1 foot long

it's like they patented hubris
posted by poffin boffin at 12:33 PM on October 14, 2014 [8 favorites]


If you get it breadless, is it a sandwich?

Technically, it stops being a sandwich if you serve it open-faced, since nothing is sandwiched between anything. But nobody bothers to draw that distinction, and you end up with the breadless sandwich. This is what happens when you let standards slip.
posted by Flexagon at 12:35 PM on October 14, 2014 [19 favorites]


And I half wonder if a ballsy lawyer couldn't make a case that a non-compete constitutes a time/place/manner restriction and someone bound by it is therefore an employee (and should be paid as such).

Law on this varies by state, but in a lot of places (I think this is true generally, but I haven't reviewed the law everywhere) non-competes are disfavored and governed by additional restrictions designed to make sure they're sufficiently narrowly tailored to protect legitimate business interests without being unduly harsh. I don't think it would take a particularly novel argument or ballsy lawyer to fight this kind of non-compete, if Jimmy John's tried to enforce it (which it doesn't seem like they ever have)

It would, of course, take an employee having the money to pay a lawyer and the ability to wait for court resolution of the case, which seems unlikely to me at least. Basically, Jimmy John's gets to put a non-enforceable provision in a contract knowing that if they ever want to use it, they are in a strong enough position that they probably won't ever have to lose in court.
posted by Bulgaroktonos at 12:37 PM on October 14, 2014 [3 favorites]


This is completely unenforceable and only serves as intimidation, right?
posted by anazgnos at 12:37 PM on October 14, 2014 [3 favorites]


acoutu, since the sandwich-cutting art is necessarily disclosed in the patent and therefore public information, it's ok for you to tell us the patented method. i promise not to use it commercially. i'm guessing...diagonally?
posted by bruce at 12:39 PM on October 14, 2014 [4 favorites]


Jimmy John's was also being a huge asshole in regards to the ACA, if I remember right.

I think that was Papa John's
posted by drezdn at 12:40 PM on October 14, 2014


They use a spork.
posted by Holy Zarquon's Singing Fish at 12:43 PM on October 14, 2014




drezdn: "Jimmy John's was also being a huge asshole in regards to the ACA, if I remember right.

I think that was Papa John's
"

Nope Jimmy Johns, too... (See number 3)...

So I just have one more reason to hate them.

Also - we have his cousin's sub shop (in fact, there are 3 cousins, all owning sub shops, in this region - Jimmy Johns, Milio's (the one I referenced above), and Erbert and Gerbert's.

I'll take Big Mike's any day (sorry "Milio's")
posted by symbioid at 12:47 PM on October 14, 2014 [2 favorites]


The "Employee agrees to reimburse Employer and JJF for all costs and expenses, including attorneys' fees that Employer or JJF incur to enforce this agreement against the Employee" strikes me as even more egregious.

So, you can't get another job at a fast food place, and if you do, we'll sue you. And regardless if we win or not, you owe us for the cost of suing you. So, try to get another job and you owe us 100,000$ (you think evil lawyers are cheap?).
posted by el io at 12:51 PM on October 14, 2014 [6 favorites]


IANYL but yes, this is completely unenforceable -- and what good is that fact to fast food/sandwich workers who don't have access to legal advice or any ability to defend a legal effort to enforce? This is a classic access to justice problem -- the people who deserve and need to know these are unenforceable don't have the resources to find that out. The lawyers who drafted these clauses should, frankly, be ashamed.
posted by bearwife at 12:52 PM on October 14, 2014 [14 favorites]


It's unclear what they're trying to protect. My one and only experience with one of their sandwiches was disappointing, to say the least. If "meh" is worthy of protection I can see their point but I have a feeling it's not.
posted by tommasz at 12:52 PM on October 14, 2014


"It's unclear what they're trying to protect. My one and only experience with one of their sandwiches was disappointing, to say the least. If "meh" is worthy of protection I can see their point but I have a feeling it's not."

Yeah, but that's Jimmy John's Total Meh Experience™. You won't get that trademarked middling disappointment from any other chain!

("I wanted this on wheat."
"Oh, I thought you said 'ennui.'")
posted by klangklangston at 12:55 PM on October 14, 2014 [45 favorites]


tommasz: It's unclear what they're trying to protect. My one and only experience with one of their sandwiches was disappointing, to say the least. If "meh" is worthy of protection I can see their point but I have a feeling it's not.

My wife got violently ill eating Jimmy John's a couple years back and we haven't eaten there since. They're opening one right by our house, so I was willing to give them another chance, but after seeing this crap, I think I can deal with only 20 or so sub places to choose from within a 5 mile radius.
posted by tonycpsu at 12:56 PM on October 14, 2014


Honestly, it's like they've moved past, "Grinding their workers for every penny they have," and moved onto, "Fucking their workers up just for fun."

What possible, possible advantage to the company could there be to this? These jobs are at best semi-skilled labor - there are always other desperate people to take the place of anyone you lose.

All I can see is the possibility of vindictiveness - "You think you're talking that other job that pays a living wage? Think again! We'll sue you and make you pay for the privilege of being sued!"
posted by lupus_yonderboy at 12:57 PM on October 14, 2014 [10 favorites]


Does any other profession attract such a morally diverse range of people as law? I mean on the one hand you have the public defenders and the Ruth Bader Ginsburgs -- and then on the other you have the mustache-twirling, cackling supervillains who thought this up.
posted by oinopaponton at 12:59 PM on October 14, 2014 [5 favorites]


The "Employee agrees to reimburse Employer and JJF for all costs and expenses, including attorneys' fees that Employer or JJF incur to enforce this agreement against the Employee" strikes me as even more egregious.

Shitty clauses like this keep popping up everywhere and it fucking sucks, how is this even legal?
posted by poffin boffin at 1:02 PM on October 14, 2014


Jimmy John Liautaud is a douchebag par excellence.
Here's the photo evidence.

I'm not completely shocked that he of all people would achieve a special new milestone in the history of worker exploitation. I do like their bread but I haven't been back since I first saw those pictures.
posted by seymourScagnetti at 1:03 PM on October 14, 2014 [6 favorites]


subway patented the idea of a footlong sandwich even though their footlong is not actually 1 foot long

Wait, for real? Making something slightly bigger along one axis constitutes an patentable improvement over prior art?

Shit, I'm going to throw on a tie right now and burn rubber to the USPTO's Detroit office. I've gotta patent the triple decker fridge, the wide submarine, the meatglobe, the long shortbus, and My Big-Ass Pony.
posted by Iridic at 1:04 PM on October 14, 2014 [6 favorites]


wait, actually it was a trademark issue not a patent one, but I'm not going to pretend I understand (or care about tbh) the difference.
posted by poffin boffin at 1:06 PM on October 14, 2014


This thread is inspiring me to patronize the real Jimmy John's next time I'm driving through Delaware.
posted by Holy Zarquon's Singing Fish at 1:09 PM on October 14, 2014


When I worked there, the entire NDA basically amounted to "don't tell people what's in the tuna salad."

Well, that's "Come up with title for the sequel to Sweeney Todd I'm writing" checked off the to-do list.
posted by escabeche at 1:12 PM on October 14, 2014 [9 favorites]


seymourScagnetti: Jimmy John Liautaud is a douchebag par excellence.
Here's the photo evidence.


It was pretty gallant of him to give that cheetah the Heimlich maneuver.
posted by dr_dank at 1:14 PM on October 14, 2014 [5 favorites]


It's a move designed to keep JJ employees from fleeing to Firehouse/Jersey Mike's/Potbelly/UpscaleSub Chain #4 when a new store opens in town and the franchisee wants to simultaneously staff up and cripple the competition..

Line workers doing this crap for minimum wage have zero reservations about dropping the apron and walking out the door if there's a better deal, and who can blame them? JJ's is trying to cut that off.
posted by JoeZydeco at 1:17 PM on October 14, 2014


Regret?

The other, other white meat.
posted by The Bellman at 1:18 PM on October 14, 2014 [2 favorites]


Line workers doing this crap for minimum wage have zero reservations about dropping the apron and walking out the door if there's a better deal, and who can blame them? JJ's is trying to cut that off.

Maybe they should try being an attractive place to work, instead of treating the minimum-wage line employees even more like indentured servants?
posted by Holy Zarquon's Singing Fish at 1:19 PM on October 14, 2014 [28 favorites]


Tuna salad at these places is essentially the drained water from a can of starkist tuna with sawdust.
posted by Carillon at 1:22 PM on October 14, 2014 [2 favorites]


But Americans really really want intendured servants, I mean if they were capable human beings they wouldn't be poor!
posted by The Whelk at 1:24 PM on October 14, 2014 [1 favorite]


It's a move designed to keep JJ employees from fleeing to Firehouse/Jersey Mike's/Potbelly/UpscaleSub Chain #4 when a new store opens in town and the franchisee wants to simultaneously staff up and cripple the competition..

That sounds like a free market to me.

Imagine if plumbers, electricians, tradespeople (of all sorts) had to all sign non-competes. It would mean they could literally never leave their job unless they wanted to give up their profession as well.
posted by el io at 1:24 PM on October 14, 2014 [1 favorite]


Honestly, it's like they've moved past, "Grinding their workers for every penny they have," and moved onto, "Fucking their workers up just for fun."

Oh, they're well into "fucking the workers because they can" territory.

Subway actually used a non-compete contract to get one of their former employees fired from her new sandwich-shop job... that she'd had to seek after Subway fired her for needing too much time off for medical issues.
posted by and miles to go before I sleep at 1:27 PM on October 14, 2014 [10 favorites]


Line workers doing this crap for minimum wage have zero reservations about dropping the apron and walking out the door if there's a better deal, and who can blame them? JJ's is trying to cut that off.

Far better they do that than compete on wages, right?
posted by anazgnos at 1:28 PM on October 14, 2014 [2 favorites]


I just read through the PDF. From what I can tell, not only are employees prohibited from working for other sandwich shops, but they're also not allowed to work at other Jimmy Johns franchises (that are owned by other people).
posted by el io at 1:30 PM on October 14, 2014 [1 favorite]


I'm wondering now whether my nephew, who works for a Jimmy John's (though presumably not the one in the PDF since he's not in Illinois), has signed a non-compete.
posted by immlass at 1:33 PM on October 14, 2014


Wouldn't sandwich-making methods be unpatentable because a person having ordinary skill in the art could figure them out? (IANAL.)
posted by madcaptenor at 1:40 PM on October 14, 2014 [1 favorite]


I knew he traveled to Africa to shoot animals. This is, yet, one more reason to not give them my business. I used to like JJ's, too, until I found out about the hunting.

Tuna salad, my ass.
posted by SillyShepherd at 1:42 PM on October 14, 2014 [2 favorites]


Subway tuna "salad" when I worked there 10 years ago was some tuna from a big foil pack + an incredible amount of mayo out of a plastic bag.
posted by ghharr at 1:47 PM on October 14, 2014


"don't tell people what's in the tuna salad."

Never mind the tuna, I yearn to know the secret of the special sauce.
posted by octobersurprise at 1:49 PM on October 14, 2014


I yearn to know the secret of the special sauce.

Thousand island dressing and pickle relish. Happy?
posted by JoeZydeco at 1:51 PM on October 14, 2014 [1 favorite]


Doesn't Thousand Island contain pickle relish? Aren't those the islands?
posted by Carillon at 1:53 PM on October 14, 2014 [1 favorite]


Huh I guess it actually came from a place called Thousand Islands and doesn't have to contain anything pickle based at all. #themoreyouknow
posted by Carillon at 1:55 PM on October 14, 2014 [2 favorites]


IANAL, but from what I understand there's no penalty for putting unenforceable bullshit in a contract, as long as you include the clause that says "even if 80% of this is bullshit the other 20% is still valid."

The attorneys I know are pretty unapologetic about drafting overbroad contracts in favor of their clients. As far as they're concerned, any job you get in the future is a potential candidate for violating your contract.
posted by RobotVoodooPower at 2:02 PM on October 14, 2014 [2 favorites]


The attorneys I know are pretty unapologetic about drafting overbroad contracts in favor of their clients. As far as they're concerned, any job you get in the future is a potential candidate for violating your contract.

The attorneys I know always seem pretty bent out of shape that people hate attorneys. They always say, "oh, sure, until you need us". Well, I might need a root canal someday, too.
posted by Steely-eyed Missile Man at 2:10 PM on October 14, 2014 [2 favorites]


"don't tell people what's in the tuna salad."
I'm guessing ...not Tuna.


It's a fish process.
posted by Superplin at 2:11 PM on October 14, 2014 [1 favorite]


I wish legal aid clinics ran workshops teaching people how to void onerous clauses in their employment agreements. I'd imagine that no owner or management really reads the boilerplate either, so changing it to something more reasonable would likely go unnoticed.
posted by klangklangston at 2:12 PM on October 14, 2014 [2 favorites]


The enforceability of these things depends a lot on the legal jurisdiction and the particular judge involved, unless there's also a binding arbitration clause, in which case you're at the mercy of whoever you've agreed to let arbitrate your contract disputes (unless you've got the money to pony up, that probably means some arbitrator handpicked by your employer).
posted by saulgoodman at 2:14 PM on October 14, 2014 [1 favorite]


> I'd imagine that no owner or management really reads the boilerplate either, so changing it to something more reasonable would likely go unnoticed.

It wouldn't go unnoticed for long if would-be employees suddenly knew how to void onerous clauses.

The problem is that the would-be employee won't void the clause for the same reason that he'll sign the non-compete in the first place: he needs a job, and he doesn't have the leverage to quibble over details. If he knew he could take his talents across the street, he'd have the power to bargain. This is why shitty economies suck.
posted by savetheclocktower at 2:15 PM on October 14, 2014 [6 favorites]


the long shortbus

that movie was too long to begin with
posted by feckless fecal fear mongering at 2:33 PM on October 14, 2014


"It wouldn't go unnoticed for long if would-be employees suddenly knew how to void onerous clauses."

I've done it with leases, but I take your point. Still, even knowing they have that option helps labor have (a little bit) more power in the situation.
posted by klangklangston at 2:35 PM on October 14, 2014


I yearn to know the secret of the special sauce.

Thousand island dressing and pickle relish.

Isn't Thousand Island dressing just mayonnaise/Miracle Whip and ketchup?
posted by TWinbrook8 at 2:51 PM on October 14, 2014


and pickle relish. Try making it with sriracha instead of ketchup.
posted by telstar at 2:53 PM on October 14, 2014


It's apparently more complicated that that TWinbrook8. Also not seemly interchangeable with russian dressing too.
posted by Carillon at 2:55 PM on October 14, 2014


Is there a non-pickle relish??? I'm so confused.

Also labor rights are in a despicable place right now. Ugh.
posted by fermezporte at 2:57 PM on October 14, 2014 [2 favorites]


The lawyers who drafted these clauses should, frankly, be ashamed.

No, they should be disbarred.
posted by srboisvert at 2:58 PM on October 14, 2014 [13 favorites]


Absolutely fermezporte! "A relish is a cooked, pickled, or chopped vegetable or fruit food item typically used as a condiment in particular to enhance a staple." Pickle relish being the most common in the states but chutneys etc also being relishes.
posted by Carillon at 3:02 PM on October 14, 2014


yes, relish can be made of peppers, for instance.
posted by telstar at 3:03 PM on October 14, 2014


oooh, piccalilli
posted by poffin boffin at 3:05 PM on October 14, 2014 [1 favorite]


It doesn't matter if it's unenforceable if your next employer (who is the one the nastygram will be sent to) is infinitely risk averse in regard to lawsuits. (They all are)
posted by PMdixon at 3:34 PM on October 14, 2014 [3 favorites]


I'd imagine that no owner or management really reads the boilerplate either, so changing it to something more reasonable would likely go unnoticed.

Sometimes I think the lawyers aren't closely reading the boilerplate either.

Last time around for employment agreement negotiations I'd sent back a rewritten agreement, including some changes I wanted, and also edits for a number of grammar/spelling errors. Employer's legal department purportedly said all of the changes were impossible, it had to be signed exactly as written.

When they wouldn't budge at all (or explain what they found problematic about suggested changes), I decided to probe the limits of their attention and rigidity by asking if that included the grammar and spelling corrections.

In response, they thanked me for those changes, sent back the agreement with grammar/spelling corrections applied, and insisted that had to be signed exactly as written.
posted by weston at 3:47 PM on October 14, 2014 [4 favorites]


I also liked Jimmy John's until I read about the safari hunting...and the union busting...and making people come into work while sick...this is just another thing in a loooong list.

What is it with fast-food owners being such shitty people? Are they drawn to fast food because they're awful or does the industry make them that way?
posted by triggerfinger at 4:06 PM on October 14, 2014 [4 favorites]


Sure, highly paid tech workers often have to sign non-compete clauses when they hire on at a new firm

Non-competes are not enforceable in California.
posted by w0mbat at 4:29 PM on October 14, 2014 [1 favorite]




> My wife got violently ill eating Jimmy John's a couple years back and we haven't eaten there since.

I, too, have gotten extremely ill after Jimmy John's (ca. 2005) and haven't eaten there since.

> He worked with some managers who were super sketch - always making people work sick

Oh. Well, there you go, then.
posted by Spathe Cadet at 5:08 PM on October 14, 2014 [1 favorite]


Non-competes are not enforceable in California.

Good thing all technology companies are in California.

When I started a tech company in Massachusetts, I had to argue with my own attorney about why I wanted the non-compete struck from my employee agreements. He was puzzled and said no one had ever asked for that change.
posted by nev at 5:09 PM on October 14, 2014 [1 favorite]


Sign the non compete with a fake name.
posted by Sphinx at 5:12 PM on October 14, 2014


... "don't tell people what's in the tuna salad."

Dear God, I don't WANT to know what's in the tuna salad. Not that I'm going to order any...

...essentially the drained water from a can of starkist tuna with sawdust.

There ya go, violated the non-disclosure without ever having signed it.

...person having ordinary skill in the art could figure them out?

Taste like crap? You could be right!
posted by BlueHorse at 5:44 PM on October 14, 2014


I clicked thinking that what was probably going on was that there was a non-compete alongside a non-disparagement cause, because at least that kind of makes sense given viral social media, but wow. Fast food sandwiches really must be Serious Business these days.
posted by feloniousmonk at 5:53 PM on October 14, 2014


Line workers doing this crap for minimum wage have zero reservations about dropping the apron and walking out the door if there's a better deal, and who can blame them? JJ's is trying to cut that off.

I'm pretty sure this is the long and the short of it.
posted by Tell Me No Lies at 6:01 PM on October 14, 2014 [4 favorites]


That's a separate problem you address humanely with a "no severance without sufficient notice clause." Severance. I kill me!
posted by aydeejones at 6:16 PM on October 14, 2014 [3 favorites]


Or better pay, benefits or even bonuses that encourage retention. Ahahaha!
posted by aydeejones at 6:18 PM on October 14, 2014 [5 favorites]


I work as a software developer for a massive tech corporation. Believe it or not, I have never signed a single piece of employment paperwork other than the I-9. No NDA, no noncompete, no insider trading agreement, no nothing. As far as I know I could go to all our competitors and blab about all our products and get off scott free. Obviously I wouldn't do that , but it is bizarre to think that my sandwich artist is held to a higher standard.
posted by miyabo at 7:16 PM on October 14, 2014 [7 favorites]


I also liked Jimmy John's until I read about the safari hunting...and the union busting...and making people come into work while sick...this is just another thing in a loooong list.

They were dead to me after the whole 'Hippies Use Side Door' signage clusterfuck. They all closed up round here a few years back, and now, I guess they can't find a franchisee for our market, which I find better than the alternative.
posted by mikelieman at 8:14 PM on October 14, 2014


The catering company I used to bartend for tried sending out NDA notices for us to sign a few of months ago before I moved on. Like we're gonna sell the technique for setting up a cocktail bar in a remote wedding location to the Chinese or something.

If I find out any of my buddies actually signed that shit, I am gonna be so fucking disappointed in them.
posted by Pirate-Bartender-Zombie-Monkey at 8:25 PM on October 14, 2014 [1 favorite]


So, even disregarding the massive labor-law clusterfuck that is Jimmy Johns (read up on the IWW campaign):

Assuming you aren't desperate for work, and If your employer makes you sign a non-compete clause, it is my personal opinion that you should do it and not honor the clause. Dare them to sue you. Hope that they sue you. There are hundreds of legal support organizations that would provide you with pro-bono representation and unless the non-compete clause is airtight they are simply not going to win their case and you will likely have a small windfall.

This shit should not go unchallenged.
posted by thsmchnekllsfascists at 8:26 PM on October 14, 2014 [4 favorites]


How can one patent cutting sandwiches? What could possibly be unique about it?

How about US patent 6,004,596: Sealed crustless sandwich?
"Turning now descriptively to the drawings, in which similar reference characters denote similar elements throughout the several view, FIGS. 1 through 5 illustrate a sealed crustless sandwich 10, which generally comprises lower bread portion 20, an upper bread portion 22, an upper filling 30b and a lower filing 30a between the lower bread portion 20 and upper bread portion 22, a center fillng 32 sealed between the upper filling 30b and the lower filling 30a, and a crimped edge 26 along an outer perimeter of the bread portions 20, 22 for sealing the fillings 30a-b, 32 therebetween. The upper filing 30b and the lower filling 30a are preferably comprised of peanut butter but may consist of any other edible substance such as but not limited to meat, vegetable oil, jelly, cheese, honey, or fruit."
(thrown out in 2007 after a patent examiner found a ravoli recipe in a cookbook)
posted by effbot at 8:57 PM on October 14, 2014 [2 favorites]


I do like my vegetable oil sandwiches.
posted by jeather at 9:01 PM on October 14, 2014 [4 favorites]


"Assuming you aren't desperate for work, and If your employer makes you sign a non-compete clause, it is my personal opinion that you should do it and not honor the clause. Dare them to sue you. Hope that they sue you. There are hundreds of legal support organizations that would provide you with pro-bono representation and unless the non-compete clause is airtight they are simply not going to win their case and you will likely have a small windfall."

In Michigan, the non-compete clause interpretation heavily favors the employer — to the extent that the woman in Detroit who got sued by Subway probably would have lost at trial. It's bad enough that many business owners there are lobbying to legislatively curtail it because it makes it harder to recruit, especially for out of state talent. People are reluctant to move to Michigan for a lot of reasons, but the idea that they might not be able to get another job in the same industry doesn't help.
posted by klangklangston at 9:07 PM on October 14, 2014


This always flummoxes me. Supposedly, republicans like small businesses and entrepreneurs; the soon to have's. But if the laws are stacked and such away that corporations make it impossible for New and small businesses to compete, how can they be pro-business?

(I know the answer, but it blows my mind so blatantly and overtly anti-free market corporations actions are and yet politically still manage to appeal to the small business crowd.)
posted by [insert clever name here] at 9:22 PM on October 14, 2014 [1 favorite]


kmz: "Jimmy John's was also being a huge asshole in regards to the ACA, if I remember right."

Wow, I didn't even know that. I have my own, completely petty, reason for not eating at most of the Jimmy John's in the Seattle area. One rather large franchisee has plastered "thanks, Government!" (yes, capital "G") stickers next to the compost bins at all of the restaurants, presumably in response to Seattle mandating that restaurants make compost bins available for customers to dispose of food waste. (None of his restaurants are in Seattle, so the rule doesn't apply to him, but hey.) That, combined with the "We support The Troops Under God" banners on the front door, really put me off so I stopped going.

It seems that JJ's franchisees take after JJ himself.
posted by fireoyster at 3:33 AM on October 15, 2014


When I started a tech company in Massachusetts, I had to argue with my own attorney about why I wanted the non-compete struck from my employee agreements. He was puzzled and said no one had ever asked for that change.
nev

Attorney here who works with tech start-ups in NYC. It's not always about pure evil, often things like this are just covering our own ass.

I've had situations where I advise a client to do X to avoid Y, and they decide not to for whatever reason. Then later when Y happens they get angry at me for not protecting them, and it's not a good idea to say "I told you so" to the person writing the checks.
posted by Sangermaine at 7:46 AM on October 15, 2014


Uh, I wanted to add that I'm not defend what JJ is doing here, just that non-competes can be a valid tool in certain employment situations, especially in the high-tech sector.
posted by Sangermaine at 7:49 AM on October 15, 2014


(I know the answer, but it blows my mind so blatantly and overtly anti-free market corporations actions are and yet politically still manage to appeal to the small business crowd.)

Presuming you're gonna grow your small company up to be a big abusive Whale-corp, one wants the rules written in favor of the whales so that when you get there you have a favorable situation.
posted by Pirate-Bartender-Zombie-Monkey at 7:53 AM on October 15, 2014


I work in tech. I've spent hundreds of dollars in attorney fees having contracts reviewed and advised upon. My billable rate makes that a rational thing to do. It is absurd that any worker is presented with a contract that would cost them a weeks wages to have reviewed. Especially a contract where they sign away valuable rights. A JJ just opened near me, but I think I'll give them a pass.
posted by dejah420 at 8:49 AM on October 15, 2014 [3 favorites]


Attorney here who works with tech start-ups in NYC. It's not always about pure evil, often things like this are just covering our own ass.

I've had situations where I advise a client to do X to avoid Y, and they decide not to for whatever reason. Then later when Y happens they get angry at me for not protecting them, and it's not a good idea to say "I told you so" to the person writing the checks.


I'm curious -- how many of these situations were really about non-competition vs bona-fide intellectual property issues?

If a company spends man-years developing technology and then an employee walks off with it, I'm sympathetic to the problems of the employer and can see why they should have legal recourse.

If an employee decides they could do better working on their own Rails/mobile app in more or less the same space (or sandwiches, if you like), I don't know that there's much of an argument that the employer should be protected.
posted by weston at 9:28 AM on October 15, 2014


The situations I refer to weren't related to non-compete clauses, I was just saying there are reasons for an attorney to advise on what they consider to be best practices that aren't "evil" as some in the thread see it.

I will say that I think that the two situations you present are not so obviously separate. A high-level Apple employee, say, walking off to start their own company or work for a rival carries with them all sorts of information and experience about the workings of Apple and its systems that give them a distinct advantage aside from the issues of theft of any particular IP.

It doesn't seem unreasonable in situations where you have highly skilled workers in specialized areas to seek some protection against that.
posted by Sangermaine at 9:40 AM on October 15, 2014


Just because a concern might be reasonable or there might be a good reason for wanting to be able to limit someone else's rights from a certain POV doesn't mean it's allowable.

Most companies could probably legitimately argue they could and would benefit from having absolute control over their employees personal lives. Having the power to summarily execute competitors would also probably be beneficial. But the law should never allow people to claim benefits for themselves that depend on the impingement of other's hard legal rights. Period.
posted by saulgoodman at 10:02 AM on October 15, 2014 [3 favorites]


Most companies could probably legitimately argue they could and would benefit from having absolute control over their employees personal lives. Having the power to summarily execute competitors would also probably be beneficial.

This isn't helpful.

But the law should never allow people to claim benefits for themselves that depend on the impingement of other's hard legal rights. Period.

Well, that's exactly the same argument the companies make: that certain (or, less scrupulously, all) employees are benefiting from what they've gleaned from the company and letting them walk off with that without protection is impinging their "hard legal rights".

It's helpful to consider that it might be possible to have some form of restricted non-compete mechanism without also supporting slavery and murder.
posted by Sangermaine at 10:19 AM on October 15, 2014


If a company spends man-years developing technology and then an employee walks off with it...

They should have made a better counter-offer.
posted by ChurchHatesTucker at 10:21 AM on October 15, 2014 [2 favorites]


Of course all employees are benefiting from what they've "gleaned" at the company. That's why the company markets themselves to potential employees as an innovative place where they can learn new skills.

Now, if employees are walking off with actual IP, there are mechanisms to deal with that. But at the end of the day, you shouldn't be able to demand the loyalty of your employees after you've stopped paying them, which is pretty much what non-competes do. That's why they are generally unenforceable in California (certain exceptions, like if you sell your business, applied reasonably, make sense) and should be elsewhere.
posted by zachlipton at 10:27 AM on October 15, 2014


Why? People argued for the legitimacy of extremely onerous employment contracts in our not too distant past. Point of view is everything when it comes to assesing "interests" and value.

It's helpful to consider that it might be possible to have some form of restricted non-compete mechanism without also supporting slavery and murder.

I disagree. The rights in question are too fundamental.
posted by saulgoodman at 10:33 AM on October 15, 2014


My POV may be skewed because exploitative labor arrangements like sharecropping still seem very real to me, as my (adoptive) grandfather's family were sharecroppers growing up, an employment relation not too terribly more advanced than indentured servitude. It doesn't take long for employment norms to change dramatically for better or worse.
posted by saulgoodman at 10:36 AM on October 15, 2014 [1 favorite]


I mean, I think it's perfectly fine for people to exercise their rights by choosing to make unenforceable agreements not to disclose information, or to voluntarily curtail their rights. But the courts should not recognize any such voluntary abridgments of right and it should be on the honor system, so the legal right is always retained.
posted by saulgoodman at 10:38 AM on October 15, 2014


What employers are trying to achieve with these kinds of things, in other words, is a legally-enforced level of control and operational certainty that it's not reasonable to expect to be able to have in a free world that respects the basic self-determination rights of human beings.

Even as a parent, I don't have this much control over my children, FFS.
posted by saulgoodman at 1:24 PM on October 15, 2014 [2 favorites]


I will say that I think that the two situations you present are not so obviously separate.

Probably not always -- there's often a continuum of less distinct possibilities between any two distinct poles -- but I'd be willing to double down on the idea that it's reasonable to distinguish between knowledge that comes general experience, familiarity with internal operations/practice, and common art among practitioners vs a creative work done for hire or discoveries made through focused research/practice.

And speaking of not-obviously separate things...

A high-level Apple employee, say, walking off to start their own company or work for a rival carries with them all sorts of information and experience about the workings of Apple and its systems that give them a distinct advantage aside from the issues of theft of any particular IP.

... the situation you're describing here and the situation you've said you don't think is right at a sandwich shop isn't something you've done a lot to distinguish. The sandwich shop employees under discussion here don't appear to be the subject of legal attempts to keep them from making sandwiches in other shops because of IP theft, it would seem that they're being constrained because they have information about the workings/systems/practices of a former employer.

Perhaps this is common for all fields -- you might, for example, be in a position to tell me if it's common for lawyers to be treated as if the knowledge they've gained of the law itself or the inner workings of a firm or staff makes them a threat on the open market to be constrained by contract.

Perhaps whether or not it's common defending it is essentially arguing that almost all knowledge/art/skill/ip essentially is the domain of capital rather than labor.
posted by weston at 11:49 PM on October 15, 2014 [2 favorites]


« Older The Wild?   |   My daughter, myself Newer »


This thread has been archived and is closed to new comments