Signing Away the Right to Get a New Job
May 14, 2017 8:58 PM   Subscribe

Mr. Gonzalez started at a little over $10 an hour in a job he described as “pretty much shoveling dirt.” Nevertheless, he signed an employment contract that included a noncompete clause, enforceable for three years within 350 miles of [Singley Construction’s] base in Columbia, Mississippi.
Conor Dougherty writes about about the increasing pervasiveness of non-compete clauses in contracts for The New York Times.
posted by Going To Maine (70 comments total) 37 users marked this as a favorite
 
Making sure the workers can't control any means of production, even their own.
posted by OverlappingElvis at 9:03 PM on May 14, 2017 [72 favorites]


The companies litigating the examples in the article are acting ridiculously and I really wonder what they hope to gain from their behavior. They may get their kicks bankrupting a few ex-employees if that's what they're into but when word gets around they're going to have a problem attracting any employees who have other options.

I wish more states would do as California does and make most non-compete agreements unenforceable.

And for cases where the company does have a legitimate business reason for preventing you from going to work for a competitor? They should be paying you. This idea that they make you sign away your future rights on your first day of work and you get nothing for it is contemptible abuse of their superior bargaining leverage.
posted by Nerd of the North at 9:12 PM on May 14, 2017 [58 favorites]


Double plus thumbs up for California - hot knowledge land and their unenforceable non-competes. Look at how much it kills our innovation!
posted by drewbage1847 at 9:21 PM on May 14, 2017 [37 favorites]


Lots of courts hate noncompetes. This shit: "enforceable for three years within 350 miles" would get tossed out on its ear in my state.
posted by leotrotsky at 9:37 PM on May 14, 2017 [10 favorites]


Does it matter? If you sue an employer (or if they sue you), that will show up on background checks for the rest of your life and you'll likely never be able to find an over-the-table job again.
posted by miyabo at 9:56 PM on May 14, 2017 [16 favorites]


The vampires who run Jimmy John's tried to make their employees sign noncompetes because their job consisted of making sandwiches.

sandwiches
posted by mcmile at 10:12 PM on May 14, 2017 [25 favorites]


Nerd of the North: The companies litigating the examples in the article are acting ridiculously and I really wonder what they hope to gain from their behavior. They may get their kicks bankrupting a few ex-employees if that's what they're into...

You've hit the nail on the head. They're into bankrupting a few ex-employees as a !)!)ing example to others: "don't even think about trying to get ahead in life, pleb, or we'll bankrupt you and your brother's tractor dealership and then we'll go to work on you."

Notice how the article describes non-compete clauses as "once for top executives?" Yeah, take a look at the other anti-customer/anti-individual craze that's sweeping the nation—mandatory, binding arbitration in front of an arbitrator with a severe financial interest in deciding in favor of the companies that bring in the business and against the individual who'll never see that arbitrator again—and notice how that was once solely for large businesses to compel each other to "play nice" without seeing the inside of a courtroom.

Yep, we're hosed. Nobody wants to "fix" any of this. Washington State legislators are trying to pass a bill that would make non-competes a little more fair but the large tech employers in the state went berzerk at the original draft so it has been watered down significantly.
posted by fireoyster at 10:36 PM on May 14, 2017 [14 favorites]


And what kind of person who makes $10/hour has the resources to even talk to a lawyer who knows anything about employment contracts? I know someone who used to be a dog groomer who said this sort of thing is standard for them, and yeah, she suspected it was probably unenforceable but what resources did she have?

I know that in looking at it, Legal Aid of Nebraska does not say anything about handling non-competes or employment contracts. Iowa's no help either; I know from my time volunteering there that one of the Legal Aid orgs in Ohio would have been similar, so I'm going to guess this is the norm. They might actually be able to help, maybe, but how would anybody know that? You don't need more than the threat if the person you're threatening has no easy access to anyone who can help them. I think mostly they expect these things to never even wind up in court; it's an intimidation tactic more than anything else. If they sue, it's not really to stop the one $10/hour person who left; it's to keep in line all the other $10/hour people who still work there.
posted by Sequence at 10:40 PM on May 14, 2017 [17 favorites]


The companies litigating the examples in the article are acting ridiculously and I really wonder what they hope to gain from their behavior. They may get their kicks bankrupting a few ex-employees if that's what they're into but when word gets around they're going to have a problem attracting any employees who have other options.

Operative words here being "employees who have other options." Other options are what they're trying to wipe out.
posted by kafziel at 10:44 PM on May 14, 2017 [30 favorites]


I've refused jobs and refused to sign contracts on the basis of noncompetes. I was told back then (at least a decade ago) that they are actually illegal and unenforceable in Australia (because it's considered restriction of trade) but apparently most people aren't aware of it so therefore they work.

I don't know how much of that is actually true but I do remember getting filthy looks from the hiring manager when I highlighted the non compete clause and said if they wanted me on board they'd have to strike that out. Evil things. I can't believe companies are getting away with this. Always read your contracts, people.
posted by Jubey at 11:03 PM on May 14, 2017 [6 favorites]


*Sometimes* I'm not sure it's the businesses who actually want these.

Every job I've had where the employment contract has been non-negotiable (or narrowly negotiable), it's been counsel for the company who has insisted that I had to sign the contract with the stipulations they specified -- or, in some cases, as written, even though counsel in question had clearly read it less carefully than I had, given that they would at least accept suggestions that would clean up some grammar mistakes they'd apparently missed while copying/pasting their boilerplate.

And as far as I can tell, the job those lawyers were doing wasn't necessarily to go after anything specific, it was to arm the company with the biggest, baddest legal stick they could possibly have so that if there ever were any kind of dispute the company could smash me with it. Anything less might be seen as unacceptably representing the full extent of client interests in an adversarial system...

(And yes it's naive to assume that industry also isn't well-stocked with suits actively working to limit options rather than compensate non-management talent, but I'm not sure that's the primary driver of the agreements.)
posted by wildblueyonder at 11:13 PM on May 14, 2017 [4 favorites]


The specific geographic restrictions are certainly reminiscent of fugitive slave laws being spread wide enough and reciprocally enough that there was nowhere to flee to.
posted by XMLicious at 11:28 PM on May 14, 2017 [9 favorites]


reminiscent of fugitive slave laws

The slave metaphor is generally of interest to me because all of the examples in the article are white people. The prison industrial complex has certainly gotten press at different points -and is getting more- but it’s also been around for longer than noncompetes.
posted by Going To Maine at 11:33 PM on May 14, 2017 [4 favorites]


Local restaurant requires wait staff to sign non-compete agreements. Fyi, this is dining in the most casual sense of the word, i.e., no fancy-pants table waiting going on here—in an establishment located in the middle of nowhere, population 30,000 (and shrinking)—the area has been economically depressed for the past 30 years.

I suspect the owners heard about the concept—perhaps from the local Jimmy John's owner—and tacked it onto the employment paperwork just because they could. I doubt anyone gave the idea a half second of critical thought regarding whether or not it was remotely appropriate for the circumstances.

(Needless to say, this is Trump country.)
posted by she's not there at 11:50 PM on May 14, 2017 [2 favorites]


they are actually illegal and unenforceable in Australia (because it's considered restriction of trade)
I discovered some time ago that they are literally unconstitutional in Japan for similar reasons (with very slim potential exceptions for the sorts of people for whom these noncompete clauses might actually make sense, if memory serves — the sorts of people whose individual knowledge would make or break a company, basically).
posted by DoctorFedora at 12:09 AM on May 15, 2017 [4 favorites]


they are actually illegal and unenforceable in Australia (because it's considered restriction of trade)

Not quite.
posted by robcorr at 12:57 AM on May 15, 2017


To think, that politicians brandish "pro-jerb-grerth" slogans while willfully blind to such bully behaviors.
posted by runcifex at 1:04 AM on May 15, 2017 [7 favorites]


The slave metaphor is generally of interest to me because all of the examples in the article are white people. The prison industrial complex has certainly gotten press at different points -and is getting more- but it’s also been around for longer than noncompetes.

The term "wage slavery" is also much older than noncompetes, if you find the metaphor interesting. Certainly, if anyone thought I was saying that the frustrations of noncompete clauses are like the suffering of a slave, I was not.
posted by XMLicious at 1:13 AM on May 15, 2017 [3 favorites]


"Many workers, not just blue collar but people who went to college or have an advanced degree, have only a vague understanding of what a noncompete is, and they are often asked to sign one when they have little chance to negotiate."
If Americans hadn't developed such a hostility towards unionization, non-compete clauses wouldn't be much of a thing. The NLRB makes non-compete language a mandatory subject of bargaining because it “effectively impos[es] a cost of lost economic opportunities on employees as a consequence of working for [employer]."
posted by xyzzy at 1:54 AM on May 15, 2017 [25 favorites]


Other options are what they're trying to wipe out.

It's a lot easier to abuse people who can't leave.

It's maddening that the people who argue that employees don't need protections because it's they're free to quit are generally the same people who think that using non-compete clauses against low wage workers is fine.

No employee for a landscaping company is going to sign one of these willingly. They're either unaware of it, or they're signing it under duress - the job market is such that it's often a choice between signing, or being homeless and hungry. That's not real choice.

I am honestly beginning to wonder how much worse it can get before there is widespread political violence. But I think a lot worse, as long as the elite are successful at keeping us believing inequality and suffering is just because of a lack of individual boostraps, and not because of the systems they've put into place.
posted by Kutsuwamushi at 2:29 AM on May 15, 2017 [31 favorites]


I totally understand noncompetes for upper management, or when a business owner sells their business. This, however, is completely unconscionable. There is no reason beyond abusing your employees to have noncompetes for laborers or even skilled workers who have portable skills that aren't entirely specific to one company.

Welders, no. The person designing automated welding robots, maybe, and even then they should be of limited duration and specific to welding robots, not every form of robotics.
posted by wierdo at 3:35 AM on May 15, 2017 [8 favorites]


wierdo: this is why every non compete should be paid. If the company really believed it was that critical, they'd cheerfully pay someone to sit on the beach instead of working for a competitor. The fact that they aren't makes it very clear that the goal is just another means with which to abuse workers.
posted by adamsc at 4:25 AM on May 15, 2017 [41 favorites]


I have one of these. I can't work on developing medical software for six months after I leave the behemoth hospital system that I work for. Sucks.
posted by octothorpe at 4:29 AM on May 15, 2017 [1 favorite]


Anybody on the job market today needs to use the utmost caution before signing one of these. And don't take for granted your employer's verbal commitments about the scope of the agreement will be honored down the line: if the language is vague and broad but you're told not to worry, that's just CYA for the company, don't take the deal. If you have to sign one of these, make sure it's explicitly limited in scope in a way that prevents it from being used as a backdoor tool for forcing employee retention. And keep a copy of the original paper document--don't e-sign.

I've known of companies who forced employees under these contracts to pay months worth of salary to be released from them before they could work elsewhere. In some cases, the contracts are written so broadly they claim first rights to any ideas or intellectual property an employee might produce even on their own time.

That's clearly an abuse of the legal justification for these instruments, but that won't matter if you can't afford the financial and personal disruption to fight back in court or if you've also been pressured or otherwise induced to sign an arbitration clause.

These things can, over the longer term, make a job feel more like being trapped in the mob than an at-will employment agreement, if you don't watch your back from the very start.
posted by saulgoodman at 4:34 AM on May 15, 2017 [9 favorites]


There are a couple of things that could be done if the political will was there. The best option IMO is just to ban non-competes nationwide. Restricting the movement of labor is bad for everyone, including the companies that are doing it. They are doing it because they don't want to compete to attract and retain talent, but what they don't realize is how much this is going to impact their ability to hire that talent in the first place as non-competes become more ubiquitous.

Yeah, good luck hiring for that hard to fill position if all the prospective candidates are prevented by non-competes from considering it. Plus, if someone was prevented from moving forward in their career by a non-compete, why would they bother keeping their skills up to date? These companies might as well be telling them straight out to put that time and effort into training for a new career. It's just so short sighted.
posted by jazzbaby at 5:42 AM on May 15, 2017 [11 favorites]


Anybody on the job market today needs to use the utmost caution before signing one of these.

That caution is a luxury that people desperate for a job don't necessarily have.
posted by Kutsuwamushi at 6:11 AM on May 15, 2017 [24 favorites]


That caution is a luxury that people desperate for a job don't necessarily have.

I know it, believe me. I'm one of them, in reality. But I don't have the power, personally, to do anything more than warn others at this point. And I don't know what else to say, not having any other way to influence the problem.
posted by saulgoodman at 6:36 AM on May 15, 2017 [3 favorites]


I was wondering what they were going to come up with to keep people in shit jobs once unemployment started really falling. Since "in this economy, you'll never get another job if you quit" doesn't work quite as well any more, something needed to be done! We can't have labor enjoying any benefits at all from their efforts, that just would not do.
posted by soren_lorensen at 6:37 AM on May 15, 2017 [5 favorites]


My wife was sued by a former employer for violation of a non-compete. As she's a hairdresser, I figured the agreement could not possibly hold up under the law. What sort of "trade secrets" is she taking to a competitor? They didn't train her in anything.

But we live in the American South, where the legality of such instruments is not in question. Also, the salon's logic was less stupid and more evil than it appears at first glance. Clients at hair salons are generally more loyal to the person than the site. When a stylist leaves, they usually take almost all of their clients with them. By hoping to force the stylist to either stay or get a new job at least X miles away, they're hoping to strip away the stylist's clients.

The thing that makes this extra scummy is that she brought her clients with her when she started there. They wanted her to show up with a full book and leave with nothing.

After consulting with a lawyer, we paid their goddamned penalty (because, thank Jeebus, we could), told them to drink a bucket of cold rat semen, and left. She started working right nearby. Taking her entire client base with her.

These things exist because the political will necessary to destroy them has not yet been mustered. With a lot of money behind them, it'd have to be a national scandal before they could be eliminated. Maybe someone should run for the senate with that as part of the platform. Make ads about it. Imagine the yard signs: NON-COMPETES ARE BULLSHIT: JERKWATER FOR SENATE
posted by Harvey Jerkwater at 6:38 AM on May 15, 2017 [42 favorites]


I mean, when I first let myself sign one, I'd never even worked a salary job before and thought any pay above $8.50 an hour was a small fortune. If I'd been better informed, maybe I'd have at least really understood the risks, but I had no idea what non competes were or how they could be abused. I came from a background that didn't give me any kind of experience or expectations about these things, and many people just have no idea at all what rights they might be signing away.
posted by saulgoodman at 6:41 AM on May 15, 2017 [5 favorites]


My first employer was one of the most detestable and paranoid men I've ever met. He took every employee leaving of their own volition as an act of treason and would attempt to sue on grounds of the non-compete, regardless if he had a valid case or not.

I learned the hard way he never closed old accounts. Even if the client was no longer doing business with the company, he found a way to make it look like they were actively doing business. So, when I went to work for a someone who hadn't been a client in 3+ years (ie, well within the "permissible" scope of my non-compete), I still got sued on the grounds the client was still on the books.

Even more fun was that he insisted I was violating the geographic terms of the non-compete, even though I was telecommuting for an office in NY, when the ex-boss' territory was central Florida. Simply because I, too, was still living in central Florida.

The non-compete is a very blunt tool for assholes like this guy. Sadly, it was my first job and I didn't have the resources to fight his suit, so settling made the most sense at the time so I could move on with my life. It still took me ~10 years to recover financially and emotionally (the settlement amount was conveniently all the money I had saved for my gender transition, and boy was that loss a spiral into despair).

My list of people I'd sucker punch on sight is small, but this guy is definitely in the top.
posted by Wossname at 6:45 AM on May 15, 2017 [24 favorites]


Yeah, good luck hiring for that hard to fill position if all the prospective candidates are prevented by non-competes from considering it.

The only thing worse than that is being the last non-non-compete company on the block, and having all your staff poached. Something something of the commons.

One area where non-competes may be appropriate: when buying a business. But then, the non-compete is factored into the price.
posted by Leon at 6:45 AM on May 15, 2017 [1 favorite]


Not exactly non-compete, but I remember when I was temping in NYC in the '80s, if a company wanted to hire someone sent as a temp to a full-time position, the fine the temp company could inflict was so high almost all companies had a "no temps for full-time jobs" rule. So if you thought you could temp to get your foot in the door for a job at some interesting companies, that wasn't going to happen. A couple times someone would start a conversation with me about a job and HR would shut them down as soon as they heard about it.
posted by lagomorphius at 7:06 AM on May 15, 2017 [9 favorites]


Something something of the commons.

You mean tragedy?
posted by thelonius at 7:30 AM on May 15, 2017


And as far as I can tell, the job those lawyers were doing wasn't necessarily to go after anything specific, it was to arm the company with the biggest, baddest legal stick they could possibly have so that if there ever were any kind of dispute the company could smash me with it. Anything less might be seen as unacceptably representing the full extent of client interests in an adversarial system...

Then they're dumb lawyers. The broader the non-compete, the less likely it is to be enforceable.

wierdo: this is why every non compete should be paid.

All noncompetes require consideration. That's basic contract law. That consideration may be employment.
posted by leotrotsky at 7:40 AM on May 15, 2017 [1 favorite]


I love when the New York Times sneaks in some dry, snarky humor:

“When a person takes a trade secret and walks across the street to another company, how am I going to know that?” said Paul T. Dacier, a longtime technology executive who was once general counsel for EMC Corporation (now Dell EMC), and today serves in the same position for an agriculture technology start-up called Indigo. “And when I do find out, it’s too late.”
posted by elwoodwiles at 7:53 AM on May 15, 2017 [14 favorites]


The broader the non-compete, the less likely it is to be enforceable.

Doesn't matter if, unlike your employer, you can't afford to retain an attorney and get involved in a legal battle at all because you're too financially/personally vulnerable. The risk of being dragged into court or arbitration at all is much greater for a private individual than for a liability limited company.
posted by saulgoodman at 8:00 AM on May 15, 2017 [8 favorites]


wierdo: this is why every non compete should be paid.

All noncompetes require consideration. That's basic contract law. That consideration may be employment.


I think what wierdo (and others) are saying is that they should be paid while the noncompete portion is being enforced -- that is, if your company secrets are so valuable, then you should be forced to support people in some way if you're making them unemployable in their chosen field.
posted by Etrigan at 8:03 AM on May 15, 2017 [22 favorites]


It's called gardening leave, but nobody's using the phrase... is it a Britishism?
posted by Leon at 8:10 AM on May 15, 2017 [2 favorites]


It's called gardening leave, but nobody's using the phrase... is it a Britishism?

The phrase, and indeed the concept (in the sense of it being used as a noncompete, rather than its original use as a euphemism for suspension), are not in wide usage in the U.S.
posted by Etrigan at 8:14 AM on May 15, 2017


Doesn't matter if, unlike your employer, you can't afford to retain an attorney and get involved in a legal battle at all because you're too financially/personally vulnerable. The risk of being dragged into court or arbitration at all is much greater for a private individual than for a liability limited company.

That's a valid point. Non-competes should not be leveraged as a means of employee serfdom. The presence of non-competes in low skill, low compensation jobs is pretty absurd, but unfortunately the best solutions for those folks are usually legislative, not judicial, because they'll never make it to court.
posted by leotrotsky at 8:33 AM on May 15, 2017 [4 favorites]


As a computer person I've signed a few non-competes. I've never much liked it, but fortunately they were all quite narrow in scope. Last one I signed, for example, was for a small MSB that prohibited me from poaching their clients for 3 years. And I can totally see that so I didn't even feel mildly grumpy.

But I've been extraordinarily lucky, and mostly non-competes are absolutely vile.

Even the suggestion of making the non-compete period paid isn't as great as it could be. Yes, that would decrease the number of frivolous non-competes. But while a three year paid vacation is nice, in a lot of fields three years out of circulation means your skills will have atrophied, and a giant hole in your resume always looks bad.

We just need to ban non-competes entirely. Real trade secret stuff can be covered by NDA's and IP law.
posted by sotonohito at 8:36 AM on May 15, 2017 [6 favorites]


wierdo: this is why every non compete should be paid. If the company really believed it was that critical, they'd cheerfully pay someone to sit on the beach instead of working for a competitor. The fact that they aren't makes it very clear that the goal is just another means with which to abuse workers.

...but I think there's some nuance needed here. Are you talking about all restrictive covenants (non-poaching, non-solicitation, non-dealing, and non-competes) here? Because I shouldn't need to continue pay my former employee to keep them from stealing my client lists and jumping to a competitor.
posted by leotrotsky at 8:39 AM on May 15, 2017


Because I shouldn't need to continue pay my former employee to keep them from stealing my client lists and jumping to a competitor.

Why not? What's unique and amazing about your client lists? If your company is providing a good product or service at a fair price to your clients, then you won't have to worry that Stu is going to "steal" them. "Corporate espionage" should be restricted to trade secrets that can be otherwise protected (e.g., by patent or copyright), not personal relationships.
posted by Etrigan at 8:43 AM on May 15, 2017 [17 favorites]


Real trade secret stuff can be covered by NDA's and IP law.

I think being a computer guy may warp your perspective a bit. IP doesn't cover everything. Not all business methods are patented, nor should they need be to be protected. And I suspect that moving to NDAs from non-competes would creates a much bigger burden on the former employer to prove that it had been violated. That isn't necessarily a good thing.
posted by leotrotsky at 8:43 AM on May 15, 2017 [1 favorite]


Why not? What's unique and amazing about your client lists? If your company is providing a good product or service at a fair price to your clients, then you won't have to worry that Stu is going to "steal" them. "Corporate espionage" should be restricted to trade secrets that can be otherwise protected (e.g., by patent or copyright), not personal relationships.

Because client and prospect lists can be f#cking expensive to build. Having a list of companies (usually private companies that are difficult get good information on) within a specific niche that has a need for a specific product and is willing to pay for it is valuable, it saves you tons of money that you'd normally spend on advertising and marketing to find them. It's an intangible asset just like any other.
posted by leotrotsky at 8:50 AM on May 15, 2017 [1 favorite]


The instrument is too blunt. One manager in a case I'm aware of straight up admitted on the stand that employee retention was the real motive for one such agreement that was later invalidated.

It's nonsense that just because someone works in a highly paid professional field they'll necessarily be in a position to fight these things. In my case, I had no savings and was a sole earner for my family, with no surviving family of my own in the states capable of lending a financial hand. On paper, I made enough you might think I wasn't vulnerable, but in reality, nearly all my income was already spoken for to pay college loans and other long term debts. I mean, now I'm just ruined financially completely, so it doesn't matter; even when we were still not bankrupt, we didn't have even a couple thousand extra for an attorney and definitely had very little wiggle room for income disruption while pursuing a legal case.
posted by saulgoodman at 8:50 AM on May 15, 2017 [5 favorites]


Corporate espionage" should be restricted to trade secrets that can be otherwise protected (e.g., by patent or copyright), not personal relationships.

Corporate espionage should be limited to black ops cyborg commando mercenaries extracting key personnel from secret fortified corporate desert compounds like in William Gibson novels. It's only fair.
posted by Sangermaine at 9:05 AM on May 15, 2017 [2 favorites]


Surely corporate board members are limited by these same agreements. It would be madness for them to serve on multiple boards at once, or even worse, to have competing day jobs elsewhere at the same time!
posted by benzenedream at 9:10 AM on May 15, 2017 [25 favorites]


At the very least, the labor department should have to review and approve the language of these things. Not exaggerating: some will literally claim all your ideas belong to your employer and at least nominally require ridiculously broad things like written notification if you even so much as have an idea for any kind of product, project, or service, whether currently competitive with the employer or not.

The best way to prevent poaching is to keep your employees and clients satisfied and deal honestly and respectfully with them.
posted by saulgoodman at 9:22 AM on May 15, 2017 [3 favorites]


That isn't necessarily a good thing.

Maybe not, but I haven't seen a convincing argument yet that the status quo is too employee friendly.
posted by PMdixon at 9:32 AM on May 15, 2017 [1 favorite]


Because client and prospect lists can be f#cking expensive to build. Having a list of companies (usually private companies that are difficult get good information on) within a specific niche that has a need for a specific product and is willing to pay for it is valuable, it saves you tons of money that you'd normally spend on advertising and marketing to find them. It's an intangible asset just like any other.

But let me guess: if it's employees bringing clients and prospects with them into the job and saving the employer tons of money that you'd normally spend on advertising and marketing to find them, then in that case it has zero cash value and the employer would expect to obtain ownership of it all gratis as in the scam Harvey Jerkwater describes.

This all could be integrated into a coherent system of new law governing surveillance and privacy and transparency across society, but it will never happen.
posted by XMLicious at 9:43 AM on May 15, 2017 [18 favorites]


My first employer was one of the most detestable and paranoid men I've ever met.

We must have had the same boss at some point, lol. Supposedly this one former boss even sent one of his current employees out to tail a former employee to their new job, because he was so paranoid the employee had been poached. They hadn't, they were just trying to get on with their lives, is my understanding. But once that kind of paranoia grabs a hold of an entitled feeling rich person with some connections and political clout and a tendency to feel threatened by and hold grudges against underlings, watch out buddy. Your life might be over and you might not even know it yet.
posted by saulgoodman at 10:14 AM on May 15, 2017 [3 favorites]


surely the free market can solve this. simply pay the highest wage and make working hours and conditions attractive to employees.

HAHAHAHAHAHAHAHA. we meant the free market for *you*, not *us*.

(nda + noncompete + binding arbitration are in every employment contract i've signed since...ever)
posted by j_curiouser at 10:34 AM on May 15, 2017 [8 favorites]


While I agree noncompetes are terrible, I've also seen situations in which clients went with departing employees even though said employees hadn't developed them, seriously crippling a firm for some time. I am reminded of contested divorces.
posted by Peach at 10:51 AM on May 15, 2017


While I agree noncompetes are terrible, I've also seen situations in which clients went with departing employees even though said employees hadn't developed them, seriously crippling a firm for some time.

Maybe the firms should have fought harder to keep the clients and/or employees.
posted by Faint of Butt at 10:55 AM on May 15, 2017 [17 favorites]


Given the options of (a) non-competes for entry level employees making less that $60k a year for broadly fungible skills like fucking sandwich making or (b) no non-competes, I'm going with (b). Non-competes have a purpose, but they have completely metastasized into a cudgel to beat vulnerable labor with. They need to be pruned back with a vengeance, or eliminated.
posted by Existential Dread at 10:59 AM on May 15, 2017 [10 favorites]


My wife has that issue with a former employer. She signed a non-compete, for a rather specific industry. Not a particularly common industry, but where it exists, there are lots of opportunities, so she did land a job at another company. She has a non-compete, and has not revealed any of her former employer's trade secrets, and refuses to work on the portfolios of clients that came to her current company from her former employer, especially ones that she had once personally worked on. Even more ironically since she had to sign a new non-compete with the current employer, when they knew that her very employment by them made her violate the former employer's non-compete.

Sadly, this is in Florida, where these type of agreements are enforceable. Otherwise she would have gleefully poached a great many clients.
posted by Badgermann at 10:59 AM on May 15, 2017


But let me guess: if it's employees bringing clients and prospects with them into the job and saving the employer tons of money that you'd normally spend on advertising and marketing to find them, then in that case it has zero cash value and the employer would expect to obtain ownership of it all gratis as in the scam Harvey Jerkwater describes.

Uh, if I've got clients and prospect of my own that I'm bringing into a job, I would be expected to be compensated for bringing them in. Given that I'm not working there yet, I'd also have some negotiating power regarding what, if any, non-competes I'd sign as a condition of employment.
posted by leotrotsky at 11:15 AM on May 15, 2017


The broader the non-compete, the less likely it is to be enforceable.

Just threatening to try and enforce the non-compete has a chilling effect, not just for employees who don't want to chance it, but also for prospective employers who do not want to get involved.
posted by jazzbaby at 11:31 AM on May 15, 2017 [4 favorites]


Not all business methods are patented, nor should they need be to be protected.

Given that there has been a clear policy choice not to protect them under patent law, why not?

And I suspect that moving to NDAs from non-competes would creates a much bigger burden on the former employer to prove that it had been violated. That isn't necessarily a good thing.

Given that we are talking about preventing people from earning a living, why shouldn't the heavier burden be on the former employer?

I worked on a case where a failure to get noncompetes signed could have cost the company $$$infinity, and the guys in question were real, totally unsympathetic scumbags. These kinds of cases represent approximately 0.01% of all noncompetes. The rest are just abuse.
posted by praemunire at 12:14 PM on May 15, 2017 [8 favorites]


and a giant hole in your resume always looks bad.

I just came in to do some rage at this thing. Hell no it doesn't. It doesn't look like anything, just like a diploma doesn't look like anything, and someone with disabilities or a freakin' racially different name or an age or the fact that you sued a previous employer or the fact that there are pictures of you drunk on Facebook or whatever doesn't look like anything until the minute we ascribe motives and personal qualities and some classist bullshit that has jack to do with the job at hand to it, and how the fuck dare we?

Down with bourgeoisie hiring practices, up with hiring people to do a job based on their skills for the job, and bees for the enforcers of serfdom and aristocracy.
posted by saysthis at 2:55 PM on May 15, 2017 [1 favorite]


My wife was sued by a former employer for violation of a non-compete. As she's a hairdresser, I figured the agreement could not possibly hold up under the law. What sort of "trade secrets" is she taking to a competitor? They didn't train her in anything.

But we live in the American South, where the legality of such instruments is not in question. Also, the salon's logic was less stupid and more evil than it appears at first glance. Clients at hair salons are generally more loyal to the person than the site. When a stylist leaves, they usually take almost all of their clients with them. By hoping to force the stylist to either stay or get a new job at least X miles away, they're hoping to strip away the stylist's clients.

The thing that makes this extra scummy is that she brought her clients with her when she started there. They wanted her to show up with a full book and leave with nothing.

After consulting with a lawyer, we paid their goddamned penalty (because, thank Jeebus, we could), told them to drink a bucket of cold rat semen, and left. She started working right nearby. Taking her entire client base with her.


Being as most hair salons make hairdressers pay rent for their chairs, I have no sympathy for their noncompetes. The hairdressers should be taking all their clients with them.
posted by kafziel at 3:53 PM on May 15, 2017 [6 favorites]


leotrotsky:
Are you talking about all restrictive covenants (non-poaching, non-solicitation, non-dealing, and non-competes) here?
I was thinking only about the ability to practice your profession since that's where the most egregious abuses tend to take place. I think there's room to be more restrictive with things like client lists but I think there's a huge caveat there which is that it only applies to things which that company paid the employee to create. If a sales person brings a client with them, that relationship doesn't magically become company property unless they're willing to pay for it.
posted by adamsc at 4:57 PM on May 15, 2017 [3 favorites]


and a giant hole in your resume always looks bad.

I just came in to do some rage at this thing. Hell no it doesn't. It doesn't look like anything

Down with bourgeoisie hiring practices, up with hiring people to do a job based on their skills for the job, and bees for the enforcers of serfdom and aristocracy


I admire the passion behind the statement, but the notion that a giant hole in your resume looks bad is in no way at odds with the observation that, becausewe live in a bourgeois society that has bourgeois hiring practices, giant holes in your resume do look bad. Railing at the problem should perhaps be directed elsewhere.

That said, it’s interesting to note that the original comment was made about the IT industry. My impression is that quite a few jobs are open to you provided that you can get past the whiteboard phase, regardless of resume gap size. White board exams are notoriously unpopular here, of course, but they do provide a rather different door through which one can go in order to get around resume gaps.
posted by Going To Maine at 7:25 PM on May 15, 2017


I admire the passion behind the statement, but the notion that a giant hole in your resume looks bad is in no way at odds with the observation that, becausewe live in a bourgeois society that has bourgeois hiring practices, giant holes in your resume do look bad. Railing at the problem should perhaps be directed elsewhere.

That said, it’s interesting to note that the original comment was made about the IT industry. My impression is that quite a few jobs are open to you provided that you can get past the whiteboard phase, regardless of resume gap size. White board exams are notoriously unpopular here, of course, but they do provide a rather different door through which one can go in order to get around resume gaps.


I think the point is that it looks bad only because bourgeois assholes decide it needs to be bad, not because it actually is bad.

I've got a seven year gap in my legal resume. There's a graduate degree in there, but it doesn't matter, my legal career is completely dead.
posted by kafziel at 7:37 PM on May 15, 2017 [3 favorites]


I was thinking only about the ability to practice your profession since that's where the most egregious abuses tend to take place. I think there's room to be more restrictive with things like client lists but I think there's a huge caveat there which is that it only applies to things which that company paid the employee to create. If a sales person brings a client with them, that relationship doesn't magically become company property unless they're willing to pay for it.

Only if you agree that a company paying the employee to create that client relationship means the company deserves total ownership over the client relationship. That's not an uncontroversial statement.
posted by kafziel at 7:38 PM on May 15, 2017 [1 favorite]


White board exams are notoriously unpopular here, of course, but they do provide a rather different door through which one can go in order to get around resume gaps.

The problem in that case is getting to the whiteboard. The resume gap won't hurt you if you've already made it to an onsite interview, but most people won't even get that far and the initial gating is basically all about your resume.
posted by thefoxgod at 8:20 PM on May 15, 2017


White board interviews can suck if you've got ADHD and PTSD or test anxiety. In my situation now, I've got some kind of serious health problem now, too--either I've been having small strokes or I've got a serious degenerative neurological condition emerging. I can still code, but my life and health are such crap and I'm organizationally so overwhelmed, managing all the rest, is next to impossible now, but that's off topic.

In my own case, my former employer explicitly said they were "firing the client" I ended up working for, even though our team had just successfully delivered and had gotten an opportunity to do more work. I was one of only a handful of people left with institutional knowledge about a very complex annual data analysis process that had been considered mission critical in the past (the state scrapped the whole process, basically, after I left; I tried to help keep the ship afloat, but because of my legal issues, couldn't work on the project I had the expertise in even though my former employer had "fired" the client and used that work disappearing to justify laying me off. So that was over a decade of work that came to nothing, for all parties, over these things.)
posted by saulgoodman at 7:46 AM on May 16, 2017 [1 favorite]


Am I reading this correctly that the noncompete clauses also apply if employees are laid off or let go? (as opposed to leaving by their own choice) That seems exceptionally evil.
posted by SisterHavana at 9:58 AM on May 17, 2017


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