You don’t have to prove it. They have to sue you.
Essentially my point.
Yeah, well, Scandinavia is civilized, the US is, in many ways…not.
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In this job market, ‘Possible lawsuit upon hiring’ is a pretty big no-go for most companies.
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Both the Democrat and Republican parties are in bed with Big Business. The only difference is Republicans are more socially conservative while Democrats are more socially liberal when it comes to things like women’s right to choose etc. What Democrats and Republicans agree on is Rich getting richer while the Poor getting poorer. Oh sure the Democrats may pay lip service to the ordinary working man but that is just it lip service nothing else. Their policies are every bit Pro-Big Business as the Republicans. You really don’t have much of a choice when it comes to voting.
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Ok, well. Some rules of thumb.
–I’m not a lawyer! I just read up on this some when a friend was being threatened with a non-compete agreement she had signed as a retail clerk at one of those storage-item selling companies (can’t remember which of the two big ones). Her new employer (the other of those two companies) called the old one and it all just went away. However this is also a state law thing, so it could be somewhat different in some states, but it is roughly the same across the US.–
If hiring a lawyer to defend you would be a serious financial problem your non-compete is almost certainly invalid. Non-competes can only be valid for very trusted and unique employees, and such employees are highly paid.
If the company isn’t paying you for the non-compete period it is normally invalid. There is a basic idea in contract law that the contract must benefit both parties. A non-compete with no compensation is too one sided. The fact that they are employing you is not sufficient for such an extraordinary term.
If you weren’t one of the handful of top people at your company in some strategically critical area with lots of closely held business information seriously in excess of what other employees have a non-compete is invalid.
The “They have to sue you” bit is actually huge. What will happen is the stupid manager who has been hassling you about the agreement will go talk to his lawyer. His lawyer will very likely tell him that suing is a waste of money because they will lose and that they will also lose the counter-suit for legal costs and that they have a chance of having everything you ever signed for the company invalidated as well, non-disclosures for example, because some judges take a very dim view of clearly illegal bullying employment contracts.
Also your new employer is reasonably likely to help you out, depending on your value, but very likely the most it will take is a letter from your new employer’s lawyer which will trigger the stupid manager to talk to their lawyer and then to go back to actually doing their job.
The worst case for you is probably something like:
The former employer threatens other potential employers that they can’t employ you because of the non-compete without telling you. Those people shy away from the whole mess. You mysteriously can’t get work. Of course this could easily happen in the absence of you ever having signed a non-compete (see the other recent post on tech poaching agreements), and is even more illegal and opens the former employer up for a lawsuit over your lost wages. But it would be a horrifying mess if it happened and you would have to prove something is happening.
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“the only difference” eh?
Not really.
The votes in the US legislature these days tend to be nearly all of one party, and a minority of the other. This is to be expected with a near 50/50 division but a wide ideological gulf.
So that bankruptcy reform got nearly all Republican legislators and a handful of Democrats who are unusually corrupt on the side of credit card companies.
The Iraq war authorization got all but one or two Republican legislators and I think around 1/3 of Democrats.
Our weak-tea healthcare reform got nearly all Democratic votes and what like 2 Republicans?
Bush’s 2001 tax cuts passed the senate with 45/46 Republican senators and 12/45 Democratic ones.
Bush’s 2003 tax cut passed with 2 D’s voting yes and 3 R’s voting no in a nearly 50/50 senate.
And this kind of pattern repeats over and over. The strongly pro-plutocracy legislation that passes tends to have nearly unanimous support from the Republican party and a minority of Democratic votes (often from legislators with specific industry ties aka specific corruption) allowing it to pass. To the extent that ever have pro-worker legislation it tends to have strong majority Democratic support and fewer Republican votes than you can count on your fingers after a couple unfortunate encounters with a band-saw.
Anyhow. Still matters. They aren’t the same. The policies we get out of Democratic majorities are materially different from what we get out of Republican majorities, even if not as different as you or I might like and not as different as we need to turn things around.
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How could you forget this eternal verity?
Because fuck you, that’s why.
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Exactly, which is why the corporations did it behinds the workers’ backs instead.
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I personally know a person who has been sued (in their case, at the time they were a lower recruiter for a contracting agency) for breach of Noncompete.
Also related, you’re asked by HR and must sign that you have no noncompetes signed with your former employer, so it’s an instantly fireable offense (and employers often know which of your former employers DO have noncompetes as a given.)
Your “don’t worry about it!” attitude doesn’t match how it’s practiced and the dance that tech workers do around all this bullshit.
Did this person lose the lawsuit?
I am a tech worker, but I don’t think non-competes are common in my part of the industry, so I have never signed one and never heard of anyone not at the very extremely well paid top signing one, and those were in the instances I have seen them squabbled over in court appropriately specific (aka you can’t make this very specific type of product at your new company which is exactly the IP you left with us). I would expect this kind of nonsense to be much more common with recruiters and sales people.
Now I’m at the point in my career where I think I would refuse to sign a non-compete from a potential employer unless it satisfied the conditions that would make it legal (particularly the ‘you have to pay me to stay away’ bit). I can afford not to work with *&!!#$!s. However when I was starting I would very likely have signed, and I would have done so pretty thoughtlessly and hopefully have forgotten all about it for the next job so I could sign that I wasn’t under any restrictions. Or, you know, lie. That’s not ideal, but as I am 'working with *&!!#$!s its probably not going to be the last time – and a man’s got to eat. Of course back then I also didn’t already know these agreements were BS. However maybe I would have looked it up?
I find it all very sadly likely that you are fairly describing reality in your bit of the US employment universe. Companies getting people to sign illegal contracts, other companies enforcing them, and employees to scared to stand up for their rights. It fits in nicely with the ridiculous fear of firing people that many companies and managers seem to have.
I’d have to assume your “part of the industry” involves tech in a field that’s not traditionally tech-oriented.
It’s not just the “talent” of Devs, SDETs and other workers, the low-end grunt contractors are also subject to them.
So, did they lose the lawsuit?
Actually, reading a bit more, I suspect the disagreement is due to where you are working. There are apparently some US states where fairly stringent non-competes are often upheld, and the mere fact of employment can be enough to support them. Massachusetts, for example, which has lots of tech industry.
However, California, with the largest tech industry is one of the states where they are least enforceable. In California ONLY the owner of the business who sells can be subject to a non-compete. Even more restrictive than most.
Most states have squishy “reasonableness” standards, along the lines that I described earlier.
As my bit is heavily centered in California (Though I have been employed in three states so far as a Software Engineer with no non-competes) it may be that industry culture doesn’t use non-competes because that both means that half the jobs aren’t under them, and because they are hard to enforce on someone who moves to California weakening the restriction.
If worried about non-competes work in California.
BTW, here is an account of a recent non-compete fight between Amazon and someone who went to work for Google:
It was a software sales position, where such things are more common and more enforcable. His new job at Google was “Director of Cloud Platform Sales” so he was likely very senior at Amazon and highly paid.
In the end a non-compete much more limited than that requested by Amazon was upheld, but it expired at almost the same time as the restriction that Google & the employee had voluntarily put on his new position.
He was backed by Google, and they wrote a custom employment terms to defeat Amazon’s over-reaching non-compete (again he was not some low level grunt).
Pretty sure Amazon spent a pile of money taking this all the way to federal court, and basically lost.
It was decided under Washington law, Washington is a middle of the road non-compete state. Under California law the non-compete would have been simply tossed out.
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