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Noncompete Clauses: Signing Away the Right to Get a New Job

662 点作者 mikeh1010大约 8 年前

39 条评论

etjossem大约 8 年前
Worth remembering, especially for those just entering the software field: by the time a potential employer gives you an employment agreement to sign, they&#x27;ve already decided they want you. At that point, it&#x27;s on them to give you a palatable offer. They may include a noncompete clause for one of two reasons: 1) to prevent you from working somewhere else at the same time, which can create all sorts of conflicts of interest, or 2) because it&#x27;ll keep you from looking for a new job, and they think you&#x27;re too naive to argue.<p>Here&#x27;s my suggestion. When you receive the document, read it and see if there&#x27;s a noncompete clause. If so, you&#x27;re going to want to send a redlined version back to them, changing the noncompete duration from &quot;during and for 2 years following employment at the company&quot; (or whatever they gave you) to &quot;for the duration of employment at the company.&quot; By doing so, you show your willingness not to do any kind of work for a competitor while employed, while very clearly pointing out that you do have the right to get a new job. It may be important not to offend the person who wrote up the agreement and included something so ridiculous, so the minor nature of your modification will allow them to save face.<p>In the end, most employers won&#x27;t bother to argue the second point, and the ones that do are probably shadily taking advantage of you in other ways.<p>Additional note: in California and several other states, these clauses are not legally enforceable anyway, and you should mention that when you give them the &quot;fixed&quot; agreement.
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watertom大约 8 年前
Health insurance is also part of the rigged labor market.<p>The only reason big companies offer health insurance is because it limits employees&#x27;s freedom. It would be easy for the Fortune 100 or 200 in unison agree to eliminate health care and provide a higher salaries. It would make the companies more competitive globally and it would free them from a whole lot of other nonsense, but they don&#x27;t drop healthcare. The reason they don&#x27;t droop healthcare is because healthcare and pre-existing conditions limit employee options and it suppresses wages. Also if there was universal healthcare it would be easier to start small companies and attract employees, those small business would be competing for employees against big companies on equal footing.<p>Healthcare is a racket limiting not just healthcare but freedom.
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algesten大约 8 年前
I had a previous employer trying to stop me from working directly for a client. Only, I had brought in the client, I was the only one working for that client and that client didn&#x27;t want anything to do with the rest of my employer.<p>I felt morally OK with the situation...<p>Only, my contract did have a noncompete. But then, this is Sweden, and noncompete clauses are almost not enforceable by Swedish law. An employer can&#x27;t stop an employee to take another position. To be a valid clause, an employer must offer the same payment the new position would have had whilst riding out the non-work period, and no one does that.<p>A strongly worded letter from my lawyer sorted it. Never heard from them again.
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postfacto大约 8 年前
If you&#x27;re going to violate a noncompete, don&#x27;t tell anyone you&#x27;re going to work for a competitor. Keep yourself as small of a target as possible for your former competitor&#x27;s legal team.<p>- When you quit, tell your now former employer that you&#x27;re quitting to pursue something other than what was your established industry. Your (made up) lifelong dream of starting your own microbrew brand, Macrome supply business, winery, whatever. Or looking after a sick relative, or going back to school full time, etc.<p>- Cut off ties with all your former coworkers, at least for the noncompete duration. If you bump into them at the grocery store and you can&#x27;t get away from them, tell them about how wonderful the beer business is or how your relative is doing.<p>- Don&#x27;t put on Facebook or Linkedin that you work for the new employer.<p>- For the duration of the non-compete, only those closest to you who critically need to know about your new employer, spouse, etc will know.<p>- Avoid publicly-facing industry related activities that tie you to your new employer for the duration of the noncompete. Giving speeches, presentations, writing article, etc.<p>None of these are foolproof but they are all common sense. Remember the Monty Python sketch about How To Not Be Seen.
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bunderbunder大约 8 年前
My last company&#x27;s noncompete had a really nice twist: Instead of banning me from seeking employment at a competitor altogether, it instead granted my employer the right, to, at their discretion, compel me to delay starting at a competitor for a certain amount of time. However, in order to do so they would also have to pay my salary over that period.
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dimva大约 8 年前
In finance, companies will pay you your salary to not work if they decide to enforce a non-compete. It&#x27;s written into the contract. I have friends who get to take year-long paid vacations when they switch jobs just because they work in HFT.<p>I&#x27;m surprised that this isn&#x27;t law. I guess financial companies care about their employees more and&#x2F;or their employees are more astute about contracts.<p>Companies shouldn&#x27;t be allowed to prevent their ex-employees from earning a living. If it&#x27;s that important for them to prevent the transfer of their proprietary information, they should be happy to pay for it.
valuearb大约 8 年前
&quot;California law prohibits noncompete clauses, contributing to the inveterate poaching with which the state’s technology industry was founded. It can be brutal for employers, but it helps raise wages and has created a situation where any company looking to hire a bunch of engineers in a hurry, be it an established giant or a start-up, feels it should locate there.&quot;
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CalChris大约 8 年前
In the US, California, North Dakota and Oklahoma are the exceptions. NCCs are legal elsewhere.<p><a href="http:&#x2F;&#x2F;www.beckreedriden.com&#x2F;wp-content&#x2F;uploads&#x2F;2017&#x2F;03&#x2F;noncompetes-50-state-survey-chart-20170204.pdf" rel="nofollow">http:&#x2F;&#x2F;www.beckreedriden.com&#x2F;wp-content&#x2F;uploads&#x2F;2017&#x2F;03&#x2F;nonc...</a><p>Even in CA, trade secrets have an exception.<p><a href="http:&#x2F;&#x2F;www.weil.com&#x2F;articles&#x2F;the-trade-secrets-exception-to-californias-ban-on-employee-noncompetition2_12-06-2013" rel="nofollow">http:&#x2F;&#x2F;www.weil.com&#x2F;articles&#x2F;the-trade-secrets-exception-to-...</a>
goatherders大约 8 年前
I&#x27;ve been sued twice over non compete language. The good news is they are reasonably hard to enforce because most judges will ultimately agree that people have a right to change employers. The bad news is it can cost a lot of money to get to the point where the judge says that.
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punnerud大约 8 年前
In Norway we added a law now from 2017 that the employer have to pay you the same salary for the period the non-compete is in operation. Maximum 1 year. It have you be in you contract up front, and they have to explicitly list customers and competitors.
pducks32大约 8 年前
It&#x27;s important for software developers and in demand job applicants to push the trends. I refused the noncompete clause at my startup (still got job) and made a point of how I&#x27;m principled against them for hurting people like the man in this article. We may be disconnected from the rest of America but maybe my little requirement can put the thought in people&#x27;s heads that it&#x27;s wrong.
quizotic大约 8 年前
In the early 1990s, I&#x27;d co-founded an object database company, with a standard &quot;east-coast-style&quot; non-compete, which among other things, granted us injunctive releif. Our top developer left to work for our main competitor. We sued, and the courts ruled basically that there is no slavery in the US and our developer had every right to earn a living doing what he knew how to do. Maybe laws have changed, and maybe it varies by industry, but my experience is that noncompetes are meaningless. BTW, I don&#x27;t particularly wish they had teeth, and my company was probably not significantly harmed by the outcome. Just saying I wouldn&#x27;t sweat too much about signing a noncompete.
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dboreham大约 8 年前
Since this should be illegal, or at least illegal absent some reasonable compensation for giving up the right to freely seek alternative employment (e.g. a big retention bonus), presumably our politicians offering &quot;regulatory relief&quot; are to blame?
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carvalho大约 8 年前
My first (and last) non-compete was when I was starting out as a web developer in a small company. By the time I fully realized what I had signed I had contractually given up my right to work for any other webdev company for 1.5 years, and even worse, the company owner stated that he believed the non-compete also extended to all our clients (and the clients of a major client) too. This meant nearly all banks, Heineken, Google, and consultancy agencies (we ran a job board).<p>Needless to say I am not a web developer anymore.
danny_taco大约 8 年前
As someone that was made to sign a confidentiality agreement under duress and unfair pressure months after joining the company, with stipulations that basically say ANY work I do, regardless of industry or during the weekend, belong to the company. Even after I no longer work there up to one year, and ONLY if I bother to sign the attached clause that says I no longer work there.<p>I&#x27;m so glad that tomorrow I&#x27;ll be handing in my two weeks notice especially at a critical time for the company. I&#x27;m also the most senior developer that everyone else comes to with questions regarding how the system works and how it can be improved. The original developers left for similar reasons.<p>What I&#x27;m trying to say is, if you think, as a business owner or employer that you can act against the best interests of your employees then you&#x27;ll end up paying dearly for it one way or another.
vostok大约 8 年前
The really annoying thing about noncompetes is that they&#x27;re usually at the discretion of the employer. You might be in a situation where you have a 12 month noncompete and nobody wants to hire you 12 months in advance, but then your former employer terminates your noncompete within a month and stops paying you.
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solidsnack9000大约 8 年前
This is a kind of feudalism, where the peasants need to rely on the strength of lords and their knights (lawyers) to enjoy basic freedoms.
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RcouF1uZ4gsC大约 8 年前
Using &quot;poaching&quot; to describe a company hiring someone from another company, needs to die. Companies do not own people. It is strictly a business relationship.<p>I think that the US as a whole should follow California in outlawing non-competes. It definitely has been shown to be workable.
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rdiddly大约 8 年前
This prompted me to look at my employee agreement. Sure enough, there it is. I signed it because I needed the job and wasn&#x27;t asking too many questions.<p>But this is interesting, I work in an area of the company that isn&#x27;t really part of their core competency. Meaning that the kinds of firms that would hire me are literally in another sector and wouldn&#x27;t be considered competitors.<p>So this fact, that normally manifests as complaints that &quot;management has no idea what we do here&quot; and&#x2F;or that they &quot;have no business claiming they&#x27;re in this business,&quot; ends up helping me out.
satai大约 8 年前
Just for comparison: In Czech republic this clauses are legal, but their duration is limited by law and the ex-employer is required to provide you a compensation to the time that you are limited in the job market.
thinkloop大约 8 年前
I&#x27;ve almost always been presented one, and I&#x27;ve always had it removed. It is a certainty I will compete, especially the more I become an &quot;expert&quot; in an industry, it&#x27;s not a fair expectation. I work for startups, probably tougher at big corps.
edanm大约 8 年前
I&#x27;d just like to point out that there <i>is</i> a case to be made for noncompetes, they&#x27;re <i>not</i> just a terrible thing that companies do because they can. I recommend reading &quot;The Case for Non-Competes&quot; by David Henderson (<a href="http:&#x2F;&#x2F;econlog.econlib.org&#x2F;archives&#x2F;2016&#x2F;11&#x2F;the_case_for_no.html" rel="nofollow">http:&#x2F;&#x2F;econlog.econlib.org&#x2F;archives&#x2F;2016&#x2F;11&#x2F;the_case_for_no....</a>).<p>Here&#x27;s a relevant quote (in which the author is actually quoting Aaron McNay):<p>&quot; Both employers and employees would like to be able to train the employees if the cost of doing so is less than the gains in productivity. However, there is a potential collective action problem here. What happens if the employer provides the training, but the employee then moves onto another job? The employer bears the burden of the training costs, but does not receive any of the benefits. As a result, the employer does not provide the training, and a mutually beneficial trade is not made.<p>By preventing the employee from being able to move, a non-compete agreement eliminates the collective action problem.&quot;<p>I&#x27;m not saying that non-competes are necessarily good, or necessarily bad. It depends on the circumstances. But I do think that a lot of other commenters in this thread <i>do</i> think that non-competes are necessarily bad, and I think that&#x27;s incorrect.
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EarthMephit大约 8 年前
In Sweden the during the non-compete period you have to pay the employee their full wage, which seems like a fair balance.<p>If it is that important to the company the employee should be remunerated
teddyh大约 8 年前
See also the classic <i>NDAs and Contracts That You Should Never Sign</i>, March 28, 2000 by Joel Spolsky:<p><a href="https:&#x2F;&#x2F;www.joelonsoftware.com&#x2F;2000&#x2F;03&#x2F;28&#x2F;ndas-and-contracts-that-you-should-never-sign&#x2F;" rel="nofollow">https:&#x2F;&#x2F;www.joelonsoftware.com&#x2F;2000&#x2F;03&#x2F;28&#x2F;ndas-and-contracts...</a>
pluma大约 8 年前
I&#x27;m not entirely sure how this compares to the situation under German (EU?) law:<p>Generally noncompetes are fairly widespread to varying extents. The default seems to be that you can&#x27;t compete with your employer while you are employed (whether it&#x27;s by freelancing on the side, poaching their customers or directly working for another competitor) though in practice employers will generally grant you permission to have a side-job as long as there&#x27;s no conflict of interest and it doesn&#x27;t impact your job performance.<p>However noncompetes terminate once the employment ends. The only way to extend the duration of the noncompete is by having the contract also reimburse you for the duration of that extended noncompete. Both sides can agree to lift that extension but if it&#x27;s in the contract, the employer will likely have to pay for a certain amount of time whether they want to enforce the noncompete or not.<p>So in other words, while there may be scenarios where noncompetes impact your ability to find another job while still employed, the second your employment terminates, you&#x27;re either free or continually being paid an appropriate sum of money.<p>As a freelancer I had clients that insisted on some form of noncompete, but these were generally only protecting them from me &quot;skipping the middleman&quot; and working for their customers directly -- which even without noncompetes would have created some dodgy situations.<p>I&#x27;ve actually seen multiple major consulting companies (often international ones or subsidiaries of international ones) that explicitly required a noncompete so vague that it would have practically prevented me from working for any company in the industry while also working for them -- because there would have been just no easy way for me to tell whether I was accidentally working for one of their customers or not. I never signed those but considering that certain companies like to just put into contracts whatever they would love to be able to do without any concern for validity or enforceability, I wonder what the legal situation around those would have looked like.
tomohawk大约 8 年前
Last time I was given one of these to sign, it was in a group setting. So, I just didn&#x27;t turn it in. They never did make a stink about it.<p>Just because someone gives you a piece of paper to sign, doesn&#x27;t mean you have to. Wait until it&#x27;s unavoidable.
Mathnerd314大约 8 年前
Related comic: <a href="http:&#x2F;&#x2F;www.angryflower.com&#x2F;1131.html" rel="nofollow">http:&#x2F;&#x2F;www.angryflower.com&#x2F;1131.html</a>
rch大约 8 年前
Keep in mind that sometimes a company will hire you into an unrelated job role (evangelist, account manager, etc) until your lockup runs out.
brightball大约 8 年前
Fwiw, my understanding is that in right to work states a noncompete CANNOT prevent you from earning a living in your field. The clauses have to be defined as very specific, time limited and reasonable otherwise they don&#x27;t hold up under legal scrutiny.<p>Stuff like, not being able to take current customers to a competing business within a mile for a period of 1 year is considered reasonable.
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mirimir大约 8 年前
If you&#x27;re working in a small industry where specialized skills are required, and firms commonly collaborate, you may encounter unacknowledged&#x2F;secret non-compete policies. Basically, nobody else will hire you, and they won&#x27;t tell you why. If you&#x27;ve made some friends, they may tell you what&#x27;s going on. But there&#x27;s little recourse.
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ericssmith大约 8 年前
Speaking from personal experience ... At the time of signing you can see the upside (the offer), but you can&#x27;t know the downside, which can be quite significant. It&#x27;s a poor trade-off. Avoid these unless you get some kind of severance for the period of the agreement. Mere employment as &quot;consideration&quot; is a bad deal.
kenshi大约 8 年前
An alternative point of view, even for those entering the industry: just don&#x27;t sign a contract with a non-compete clause.<p>At some point in your career you are going to have to negotiate over terms in your contract. Best to get practice in as soon as the opportunity presents itself.
michalu大约 8 年前
In Europe these clauses are not enforceable. Whether you sign a contract with such clause or not is irrelevant since it&#x27;s not a qualified subject of a contract. You can write in your contract whatever you want but only the qualified subjects are binding.
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bungie4大约 8 年前
I had an employer attempt to have me sign an NDA, NCC and, forfeit any rights to software I&#x27;d written in the previous 20 years, to them!<p>Pound sand.<p>So I was back on the street 2 weeks later.
anothercomment大约 8 年前
I think in Germany at least, employers have to pay people for the damages induced by non-compete (the loss of salary&#x2F;earning potential). Ianal, though.
ThomPete大约 8 年前
I am not a lawyer but my advice is generally to ignore it. Most wont care and those who do mostly can&#x27;t enforce it unless they paid you extra for it.
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throwaway23421大约 8 年前
this shit should be illegal. even small businesses are doing this now. programmers are a dime a dozen and everyone is using open source. fuck all these tech companies they don&#x27;t have jack shit TO steal and force you to sign away everything anyway
burntrelish1273大约 8 年前
General rules-of-thumb (IANAL):<p>- Sign the minimum of documents<p>- Don&#x27;t provide full, personally-identifying information unless it&#x27;s absolutely required<p>- Negotiate terms of boilerplate agreements if they&#x27;re too unreasonable &#x2F; don&#x27;t apply<p>- Don&#x27;t sign a binding arbitration agreement, BA is a worthless&#x2F;corrupt system that nearly always favors the employer. [0]<p>- For CA-headquartered companies, refuse to sign NCAs because it creates legal liabilities (ie, could they involuntarily transfer an employee to another state and then fire them to make an NCA apply?)<p>0. <a href="https:&#x2F;&#x2F;www.nytimes.com&#x2F;2015&#x2F;11&#x2F;01&#x2F;business&#x2F;dealbook&#x2F;arbitration-everywhere-stacking-the-deck-of-justice.html" rel="nofollow">https:&#x2F;&#x2F;www.nytimes.com&#x2F;2015&#x2F;11&#x2F;01&#x2F;business&#x2F;dealbook&#x2F;arbitra...</a>
bbcbasic大约 8 年前
Interested to see how this plays in my jurisdiction. Seems they have quite a sane approach in NSW:<p><a href="http:&#x2F;&#x2F;www.fglaw.com.au&#x2F;non-compete-employment&#x2F;" rel="nofollow">http:&#x2F;&#x2F;www.fglaw.com.au&#x2F;non-compete-employment&#x2F;</a>