Across America, employers are using noncompetes to claim ownership of employees' skills


#1

Originally published at: http://boingboing.net/2017/05/15/modern-indenture.html


#2

If an employee’s knowledge or expertise or contacts can make or break a company within a given domain (industry, geography, etc.) then sure, have them sign a non-compete – and compensate them appropriately for their added value. This, on the other hand, is a “because we can” corporate arsehole power move that’s more about using fear to lock employees into crappy, low-wage jobs (see also the U.S. health insurance system).

Put another way, if your ditch digger or sandwich maker is so bloody vital to your business that you simply must have them sign a non-compete, you’d better pay them a lot more than $10-15/hr.


#3

I’m curious to hear if there are any lawyers with knowledge about this one. What about people who work for a company in one state, which runs contracts for a company in California, and the employee telecommutes from some other third state? How enforceable is a noncompete from the first state where the contracting company is? Plus CA doesn’t recognize them. Plus the person lives in some other state not the one the CRO is in. That seems like it would be a stretch to litigate. But what am I missing?


#4

Usually when I see a non-compete clause in an employment contract, I amend the contract to include a severance pay clause for this consideration. (Eg continuing pay for duration of non-compete at 40% of exit pay, until clause is waived by then-employer.) Each time, I have found the employer will back away from such clauses or rewrite them to a narrower definition of non-compete.


#5

Across America, employers are using noncompetes to claim ownership of employees’ skills

Slavery is alive and well in the good ole’ USA.


#6

AFAIC non-competes are a violation of labor rights (even the supposedly ‘necessary’ sectors like tech.)

I should be able to offer my labor anywhere I want. If the knowledge I gain on a job is soooo valuable to that company that my leaving would cause them financial difficulty, perhaps they should pay me more so that I might stay. And if they want they want to fire me or lay me off, they should have to worry about the implications of me taking my skills elsewhere, and include that in the calculus used to make the decision.


#7

And they’ll still call you an “independent contractor”


#8

How on Earth would a former employer know where you’re working today? If you’re a rockstar geoneurochemist I can imagine some surveillance, but not for a fast food worker. Are low-wage workers really worth suing into Oblivion?

I am currently under a non-compete that forbids me to steal clients from a former employer. But even if I called every client, how would they know?


#9

For a low-wage situation, the enforcement effort only has to be made once to set an example for the others. Also, low-wage workers usually don’t have a lot of options in terms of geographic mobility, so it’s pretty easy to find out if that malcontent Joe has gone to work for another local landscaping company after leaving yours and make a lesson of him.

Chances are that one of those clients you call will either tell your former employer, or they’ll be solicited by your former employer and spill the beans then. That’s the kind of non-compete I wouldn’t fool around with.

Which is a great solution you can use because you understand that such contracts are negotiable, and perhaps because you have some leverage in the negotiation due to your education/skills/talent/experience/etc. The only experience that the vast majority of people in the U.S. have with contracts are “take-it-or-leave-it” agreements where they have little to no leverage (EULAs act as a training device in that way).


#10

Right to Work*

  • no actual right to work implied.

#11

And they want to be worshiped as “job creators.”


#12

Yeah, it makes a certain amount of sense when applied to CEOs and the like - they’re well compensated, might actually be able to take meaningful company information to another company to their benefit, and a CEO usually has skills that are perfectly applicable to another industry, so it doesn’t prevent them from working. But for rank-and-file workers? This is purely a means of controlling the labor force in a really hideous way.


#13

You are reading it wrong.

It is the bosses Right to your Work. They can’t let those nasty unions get in the way of that, can they?


#14

late stage fucking capitalism

There was a episode of Doctor Who over the weekend where almost everyone on a space station got killed off. Why? Because the company that owned the station didn’t want to pay for the oxygen to keep them alive anymore. The Doctor stopped that by rigging the station to explode if the survivors died. That stopped the plan right away due to how much money the company would lose.

This non-compete thing is the next step toward that goal.


#15

If a person is connected with their former coworkers on LinkedIn or Facebook they’ll find out when the person updates his or her job profile.


#16

The shit CEO’s are able to negotiate is unreal at times.
The company I left in 2014 brought in a new CEO in 2011 or 12 while I was there. He came from a competitor and left that position prior to securing a retention bonus. As part of his contract at my company, he negotiated to get that amount from US upon coming on board.
His first full year there, his total compensation was more than the CEO of Chase.


#17

One of my father’s former employees stole our client list and was calling them all and telling them the business had moved in a way that implied OUR business had moved. The clients immediately called us to confirm, which is how we knew.


#18

It would depend on what law governs the contract; let’s say the company is domiciled in state A, and the employee is domiciled in state B, probably state A law would govern. If state A enforces non-competes, the employee could probably be prevented from working for a similar company in state A or smaller geographical area where the company is located.


#19

This is more or less how the law is in Colorado, they are enforceable against upper management and people with access to confidential info, not the rank and file (IAAL :wink:)


#20

It’s really simple. The Company—whatever the Company might be—will do absolutely everything it can get away with, i.e. the fines are less than profit. If you regulate it it will simply adapt and either subvert the regulation or buy the regulators which are, praise Hayek, for sale—cheap!

Whatever you do they adapt and come at you again and again and again and again until you truly are human resources, entirely liquid, entirely without worth save as that resource.

This isn’t fighting the Borg. This is rooming with the Borg.