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Non-Competing With Microsoft
MrWeird writes: "I just found this and this over on Yahoo News. Apparently, Microsoft has been threatening a startup called Crossgain to sue them about noncompete agreements of former MS employees they had hired. The company had to let go 25% of their staff including CEO and two founders, all former MS employees. The second Yahoo article has a good point about how to MS, "the competition" is almost every software company out there." I don't think Microsoft's actions make much difference in the larger scheme of things, but I found this interesting because so many people sign non-compete agreements without really thinking about the consequences. Have you signed one? What do you expect to do when you leave your current job?
First, always read employment contracts before signing them. If an employer doesn't want to give you a chance to carefully review the contract or have your lawyer look over it, assume they're trying to pull something sneaky. If you think you really must sign a non-compete, make sure it's very limited in scope.
If you work with computers, chances are that it's very hard to find a job doing the same thing you do now without it competing at some level.
For instance, most of my work over the past several years has been building stuff for use on websites. With a broad non-compete, that means the competition is any company that has any kind of website at all (since the competition is for user attention). There's no way I'd sign an agreement to not work for companies with websites for 2 years after leaving a company; I'd be out of work for 2 years.
Currently I happen to work for a dating site. If the offer to work at this dating site had been attractive enough, I might have been willing to agree not to work for another dating website for 6 months after leaving.
Also, overly broad non-compete agreements probably won't stand up in court because they can restrict you from working in your chosen field at all. So MSFT may not be able to win this suit since they're regarding all software companies as competition. That kind of employment law can vary a lot between states, though; I'm most familiar with California's and I am not a lawyer.
Assume any contract you sign can be upheld.
Oh yeah and I have to tell them of what I do outside just out of courtesy.
I have been doing loads of freelance work on the side and they are cool with it.
Microsoft has a long history of employing people just to keep the brain cells off the market. I've read articles by people who were *trying* to get fired from MS but couldn't (until, of course, they finally managed to do something bad enough).
Judge Pag, the Learned, Impartial, and Very Relaxed
Here's a thought
With the large numbers of ex-MS employees working out there in the real world with "non-compete with MS" agreements hanging over their heads, and the fact that MS has business interests in such widely diverse fields, does this not constitute some unreasonable restriction of the marketplace?
Practically, though, if you happen to have a good idea that builds upon MS technology and they're your employer, then it seems like you're 0wn3d. My employer cannot afford the kind of legal muscle that MS can, so I'm not as worried about arguing such clauses and having a fair to good chance of convincing a judge that my new good idea is not exactly what I was working on here.
"Provided by the management for your protection."
Couldn't MicroBorg save a whole lot of time and trouble by just assimilating this little upstart?
- Amon CMB
Men believe what they want. - Caesar
Let's not forget the all too important "previous invention" form. At my company they have a ludicrous amount of verbage in my contract stating that anything I make at the company is theirs... except for things I do in my spare time, not on their machines, or ideas I had before the company. So in order for me to protect some crititcal ideas I wrote a document, per their request, disclosing the generalities of my previous inventions. Now they can't claim some ideas to be theres... and if you're as earger to start a business and I think you are, then you'll want to cover your butt. Because if you suddenly make a million or more, that previous company will say "oh, gee, didn't that guy work for us, and didn't he sign that agreement? Oh, that's right... everything he developed is ours, and so is his new company's intellectual property that's related to our business." Well, not with the Previous Inventions Disclosure agreement! Get yours today!
"Politicians find new names for institutions which under old names have become odious to the people."
Same thing happened to me....I said that I had some exclusions to the intellectual property agreement, inventions of my own. They said, document it and we'll exempt it fromt he agreement. I brought them the documentation about my inventions but they never got around to having me sign their int. prop. agmt. Now I've left. HA HA HA.
How does poking someone's eyes out stop him from telling others where the treasure is?
Care about freedom?
I'd rather be lucky than good.
I do wonder about these n-c's. I work on websites with a global audience. Technically, it would seem that no matter where I work I would be cramping my former employer's style. Practically, no-one has given me any serious grief after I change jobs.
The last place I worked in was a small web design company in England, which paid a solicitor for a standard employment contract with the non-compete section which, after fruitless arguments, I signed.
Some months later, one employee left and started a web design company 100 miles away. The directors weren't too worried. Then I left and started doing the same internet tech thing 40 miles away, but in a whole different country (Wales). The directors were annoyed. Another employee left and started his own company 5 miles away, taking another member of staff and a couple of clients with him. The directors had an embolism and tried to sue him, but were thwarted by threats of a counter-sue: they had left a stream of invective on his voicemail.
Unlucky, really.
IMHO, I think it's a scare tactic more than anything else.
I'm not a lawyer, but it has been my experience that any agreement that I've signed that keeps me from working for a competing organization wasn't worth the paper it was printed on. I've challenged a couple in court and had them declared null and void. Maybe the fact that I am in Canada and the law on these agreements isn't well defined had something to do with it.
IT is an industry with serious retention problems. After all, if someone walked up to you and offered you $25K or so more money to jump ship, you'd at least consider it. N-C's a a cheap way for PHB's to try and retain staff. That is until someone sues.
"Welcome to Earth. A division of Microsoft."
This is my opinion. To make sure you don't steal it, it's covered by the DMCA.
Actually, the ancient egyptians would entomb the architect inside the tomb upon the pharoah's death. Some would create secret exits inside the tomb, but others died taking the secrets beyond their graves.
Pax Digitalia
As I discovered, it would be dangerous for me legally to work on any project - EVEN AN OPEN SOURCE PROJECT - that was in the field that I was working in at $PRIOR_FIRM. While the provisions in the agreement (that I signed, like a dunce) could be beaten, who has the cash to pay a lawyer to fight a battle like that?
Take the advice offered above - read carefully before you sign, and have a lawyer look it over. I ended up paying an attorney for an hour of her time anyway - and I'd be in a stronger place legally if I'd paid it BEFORE joining that company, rather than after leaving it.
I signed a non-compete aggreement. It said I would not compete with my employer for 1 year after leaving. If I leve my current employer to go to work for a competitor, am I competeing or is my new employer? I always assumed I woudl have to go into business for myself to violate the agreement.
The emeperor who build it, chopped off hands of all the workers so that they could not build another building like that. This was a secret kept from the architect..and it is said, that the architect was the last one to get his hands chopped..he went back and did some trick, and to this day Taj Mahal's roof leaks drops of water during rain..It is said, no one could find where the water comes from
I thought that there were already a bunch of suits against Microsoft. Don't stoke the campfire if you're sitting on a dripping can of gasoline!
"Ancillary does not mean you get to rule the world." --U.S. Circuit Judge Harry Edwards, speaking to the FCC's lawyer
The Mongols were better at this. They used redundant security systems long before anyone else. The tomb of Genghis Kahn was built by thousands of slaves, who were then marched back to forest, where the Khan's warriors killed them all. Those warriors were then taken to a village where the Khan's personal guard killed the warriors. Anyone who had firsthand knowledge of the location was dead, and anyone who had second-hand knowledge was dead too. This also logarithmically decreased the number of people who had any contact with the tomb's builders.
Do you know anything more about this CA law? I have a friend there who has gotten himself in some real trouble with a non-compete...
The last big company I worked for required me to sign a non-compete for a period of 2 years after I left them. Since they are a big company, the don't negotiate on a whole bunch of clauses their legal department put in. I tried to get a reduced non-compete, but the hiring manager couldn't change it.
So when I left the company, the first job I applied for checked with my previous employer to see if I was free of my non-compete. They had recently been audited by the big company to see if they had stolen anyone away from the big company. The answer came back that I was off limits for two years, and after that I was PNG amongst a whole bunch of places.
Thanks to those incidents, I now have an even greater job doing what I want, when I want, and it doesn't directly compete with the big, bad company that rules my market. You have to play nice with the big companies in each market if you want to stay employable.
the AC
Hemos is like...sci-fi fans;he thinks technology is cool, but he hasn't bothered to understand the science it's based on
Uhh, check out the company. It appears as if ALL of the founders and most of the officers worked for (more like ran) the MSN mobile division and then, quit, took the whole group and started a competing wireless company. What did they expect?
A lot of companies put them in, but they can't and don't enforce it. Imagine a chef who signed a non-compete agreement! I'm sorry, you can't go work for any other resteraunt again. We suggest you take up software programming.
In NZ atleast, you can happily sign one, knowing that they can't enforce it. (Oh, and for those that say signing one is volentary, when they distribute it around and say, "sign it or pack up your desk", its kinda not so voulentary anymore).
---
I use to have a funny sig, but slash cut it off, and I forgot what the punchline was.
Most of the time, non-compete clauses are -ignored- by the company that secured them. They know as well as anybody does, that one year out of the marketplace is like never having been there in the first place
however, in this case MS decided to pursue their contracted rights with these people... why? Is it because Crossgain actually produces something that MS fears? No, because Crossgain doesn't do anything audible yet.
my vague guess is it's because Crossgain is so quiet about what they do, they were actually hoping to get Crossgain to stand up in court and say "we're not competing... look what we do is XYZ what they do is LMN, there's no overlap, let our people go." Unless of course MS got some inside information about what they DO do, and know that it is serious competition, then it's more old bag...
I don't appreciate predatory corporate practice, but I also don't think that a company the size of MS has the -time- and -energy- to pick on start-ups for sheer orneriness. I guess the 3rd option is that one of these employees parted with MS on REALLY bad terms and somebody wanted to stick it to that person... *shrug*
Usually a non-compete that is that strict is not enforceable. This problem has been around in my field (electrical engineering) for a long time and in court they usually don't hold up. They can't keep you from making a living in your profession no matter what you sign. In the case of microhole, if virtually every software company is a competitor then you cannot earn a living in your field under that no-compte. About the only time I have seen no-competes upheld is when you leave to work for the other company and you are doing exactly the same thing for that company with a similar technology. Then what is usually upheld is the use of what is deemed proprietary information (other than IP which is inforced by non-disclosure and patents). That would be like you develop a technology for company A and then go work for company B that wants to same technology on their process. You would not be able to use any knowledge gained by your experiments or mistakes to develop the same technology at company B. Everything you learned at company A from you work (remember, not counting IP) basically never happened. It is very hard to prove and enforce. Unfortunately, that little company of 80 employees probably can't afford the court fight against microshaft, which is sad.
Some states are "work at will" states. In these states, non-compete clauses will not hold up in court. So, even if you do sign one, it is not a big deal. These states consider your right to work and pursue your career more important than the power of the corporate giants to control you.
(Well, there is one thing they can do -- pay you your salary for the length of the agreement, so you can sit on your ass and do nothing...)
...
I've never really understood this - is this the concept behind severance pay? If so, then I understand it a whole lot better... basically, you're being paid to not go off and do stuff that'd damage your former employer, competition-wise.
Freaky.
Makes sense in the context in which I've seen it, which is marketing/exec types who have a lot of insight into how a particular business runs, etc. They've been given 'severance' packages that run on for years, just so they won't use their talents to ruin the company
; -- the corruption of government starts with its secrets. a truly free people keep no secrets. --
Oh, that's just a myth. The legend is that it was an Italian architect who had his eyes gouged out. In any case, it didn't happen.
--
--
The internet is the greatest source of biased information in the history of mankind.
Many high-tech employment agreements take away your rights because they can-- a lot of fresh out of school people are willing to sign anything with at $90k salary & stock options attached, and they'll sign if you don't. So non-compete, total assignment of intellectual property rights, non-disclosure, etc. become industry standards. If enough people say "this is ridiculous," it will stop. Unfortunately, we lack a union or trade group, and tend to be a cuthroat bunch...
Seriously, next time you're talking to an employer, don't swallow whatever they give you. Talk to a lawyer, and tell your new company that you want them to take out certain clauses. Odds are, they will. Corporate lawyers put in all kinds of stuff that they know they won't be able to get away with, but they assume you're going to be too naive to negotiate the contract. They back off as soon as you make it clear that you think those clauses are unfair.
-m
Generally noncompetes are totally unenforcable, your right to seek gainful employement can not be signed away. Rarely a company holding the noncompete uses a noncompete as a basis to legally intimidate your new employer into letting you go. In that case get a lawyer.
One of the key important aspects of a noncompete is if you were specifically compensated for signing the noncompete. A/W you sign a 2 year noncompete in exchange for 2 years of compensation. If you were compensated for the contract, it might have some teeth, but still see a lawyer.
How is Microsoft getting this information? Are they hiring spies to go in buildings to find old MS employees? Don't they have enough money, already? Isn't this against the law too?
There exists the concept of slap-suit, or nuisance suit. This is where a large company goes after a smaller company with a lawsuit that both parties know shouldn't hold up, but with the expectation that the smaller company will lack the fiscal means of mounting the necessary challenge.
Unfortunately, there exists little effective recourse against such behavior.
...which is where the next point comes in. I should start an investement fund. I'd invest my money and lawyers in defending small fry against slap suits from big fish. If I win, I countersue for compensation and damages, both of which I get to keep a very large portion of.
This is clearly related to taking cases on a pro-bono basis, but I've only ever heard it happen in cases where prosecution (or whatever it's called in civil cases) lacks financial means, not the defences (op cit). Any ideas why?
Total bullshit, I was simply trying to contribute to the forum. Someone metamoderate.
Seeka
I have a friend who can speak from painful experience. He would very much like to leave his company for greener pastures or go into independent contractor, but his long-term non-compete agreement is screwing him.
To all of you who say non-competes are uneforceable, you may very well be right. Nonetheless, it's awfully hard for a prospective employer/client to take on someone who has that legal battle potentially hanging over their head. Even if the non-compete is total bunk they still have to worry about legal costs to kill it...
Non-competes typically only stand if one sells a business and agrees not to directly compete within a specific area and timeframe. Unreasonable restrictions will be struck down.
As someone else pointed out, individual non-competes are much more about the threat of legal action than the ability to actually enforce them.Maybe the people M$ suspected were up to something didn't have their own resumes on the web, but suppose a low-level employee at their company did, and listed the ex-microsoft execs as references.
I have been told by clients who have actually signed with me to do paying work for them that they hired me because my resume on the web matched the name of some previous employer of mine they were searching for. In those cases, the clients figured that an engineer who worked at these previous companies would be qualified to do their work.
Got your own resume on the web? Does your hosting service give you full logs, not just hit count summaries? Grep out your resume URL and look at the referring pages - in many cases the referring page URL will include the search keywords someone used to find your resume. It's pretty interesting to see what people are entering and then clicking on my resume as a result.
Michael D. Crawford
GoingWare Inc
-- Could you use my software consulting serv
After a while, Microsoft just really ticks me off
Why don't they do something like patent pollution? Then they could sew all the polluters on the planet for patent infringement. And make a mint on the licensing fees
I swear, every time I start to relax about MS, they go and do something to wind me all over again
[/rant]
Standard Disclosure: IANAL
Excellent tutorial on non-disclosures here, and here
Non-disclosures are different from noncompetes:
Excellent discussions on noncompetes here
Special Note: In some states, including California, noncompete agreements generally can't be enforced against employees. The problem is that because noncompete agreements come in so many shapes and sizes, and because you've got very conflicting societal interests, the courts tend to analyze these things on a case-by-case basis, which means predictability is very low.
There is also this interesting site:
www.breakyournoncompete.com
which has an agreement on the front end.
I am sure there are others out there as well.
"It is a greater offense to steal men's labor, than their clothes"
This was true only until the Emancipation Proclamation (1862), and even then only in some states. I believe a rather bloody war was fought over it. Your side lost, and a surprising number of people still seem upset about it.
Lets just look at the other side for a minute.
You've been given the opportunity to head up a group of 20 engineers developing a very interesting, complex, cutting edge product. The schedule calls for product to be shipped in 24 months. Eighteen months into the project, 10 members of your team tell you that they just got this great offer from Mega Code down the street. Better pay. Signing bonus. Sorry. They really liked working here, but they've gotta go for the money.
Your schedule, product and possibly company just walked out the door.
How do you keep that from happening? Pay more? How much more? Employment contract? Options? Free sodas? Non-compete?
Don't sign one unless you know what you are doing. I worked for a company, and then left after 2 two years or so.
If I had signed one, I would have been excluded from working in my perfered field until the agreement expired. As a Space and Lunar Development Consultant, anything I would have done relating to the Moon, would have violated an agreement.
To the Moon!
Orbital Development
http://www.orbdev.com
I could tell you if I have a non-compete agreement with my employer, except that I'm under non-disclosure. Actually I don't know if I'm allowed to disclose the fact that I can't disclose anything. Hope the boss doesn't read /.
I guess it all goes to show you. You may think htat you live in a free country where your skills and know how allow freedom of employment and choice but it's all a delusion. Bill gates can crush you and the people you work for like a bug. Give up any delusion of freedom.
Look at the bind these guys are in. No matter where they go if they get hired MS will sue the people who hired them, if they form their own company MS will sue them. With a legal team in the hundreds and a budget in the hundred millions they can crush anyone they want at will.
War is necrophilia.
I know that it was recently declared illegal in Israel after a 15 year legal case that ended up in the supreme court there. It might be unenforcable in the courts here as well.
The legal systems are far from being equivalent but still it might signify an inherently illegal aspect of such a contractual stipulation in a democratic country.
Then again, who wants to spend 15 years of his life in court?
While I understand your point, I have to disagree. The contents of my mind are mine, not my company's.
I see nothing wrong with a company offering someone a better salary, or whatever, in the attempt to woo them over. It's been my experience that people don't leave jobs that they are happy with. Keep your employees happy, and you won't have to worry about losing them.
I certainly think that ex-employees should be required to abide by non-disclosure agreements, but not non-competition agreements.
On the other hand, legal 101 boys and girls. Read every contract you sign. It takes time, yes, but it's well worth it.
(From a statement made by a former Wizards of the Coast employee, FYI.)
It's the same here in Virginia. We're a "right-to-work" state. I just started as a systems administrator for a school and had to sign both an NDA and non-compete but non-compete's are practicaly moot here.
I'm against picketing, but I don't know how to show it.
What got me from reading the article is that yahoo didn't have any idea what they were doing. So if it isn't know what they are building...how does M$?
If M$ is snooping into "corporate secrets" could M$ be taken to court for theft or something. I have a non-compete agreement with my employer, but it only appllies to things I do for them. And it was modified to stipulate that previous work I did was exempt from this agreement. With a small company that does not do allot of different projects I saw this as no problem. I don't think I could bring myself to ever work for the borg though..ehhe
If ignorance is bliss, the world is full of blissful people
You sound as if any two parties could contract anything and that such contract would be valid by default.
"If you shoot yourself through the head, I will pay your heirs 1 million dollars."
Do you think the contract above is valid?
Non-compete clauses are not necessarily valid either. If we can assume that one party (Microsoft) had substantially more freedom to set the terms that the other party (employee), such clauses are most likely invalid, and the contract unenforcable.
The law is not a means to confirm an existing balance of power.
I refused to sign. Period.
I asked they void it out. They asked me what time period would be fair. I said no time would be fair.
In the end they were generous to lower it from 2 years to 24 hours.
So if I leave or asked to leave, I can't work for 24 hours thereafter. I guess that's fair enough.
Man, that would be a bitch!
"Fred, how's it going on the new project? I've been hearing really good things!"
"Oh, great boss! We've actually finished up the closed beta last week and are starting public next week. We are 2 months ahead of schedule and $30,000 under budget. Feedback from the beta along with marketing's assessment has been _really_ positive. Man, this is gonna be the killer app to end all killer aps!"
"Great! Now that the project is essentially complete, will you please come down to HR with me? Oh, it's just a little formality of company policy and has to do with the non-compete clause you signed when you started this job. Only take a minute or two..."
Ouch!
There is much cruelty in the universe, John.
Yeah, we seem to have the tour map.
Also, check out CNN's article on http://www.cnn.com/2000/CAREER/trends/11/20/contra ct/ contracts and non-competes today.
-m
If there's a non-compete clause, tell them to f*ck off. Anything more than 3 months is bullcrap in internet time anyway. Offer your word of honor. If they won't take it, why would they hire you?
Stop the brainwash
I don't appreciate predatory corporate practice, but I also don't think that a company the size of MS has the -time- and -energy- to pick on start-ups for sheer orneriness. I guess the 3rd option is that one of these employees parted with MS on REALLY bad terms and somebody wanted to stick it to that person... *shrug*
How do you think they got to be that size? constantly squashing every piece of competition you come across is an effective way of getting a larger market share.
But of course...
I've seen this happen. I work for a MLM. We hired this guy to work for us. Part of the agreement when you are hired is you can't be an rep for a MLM. But you don't find out til orientation. We hired a guy and he left the next week, because he's a rep for amway. After reading this board. I think that I'm going to demand a copy of any employement agreement before accepting an offer.
How do you tell someone that they're going to be history in 2 weeks and then coerce them into signing away the right to work somewhere else? Unless of course they made them sign and only then announced the layoffs. That would be about par for the course in broadcasting.
I see even classic Slashdot is now pretty much unusable on dial up anymore.
And this is different from Microsoft's practices... how?
Hire people in key positions from important competing projects, regardless of non-compete clauses (which go unchallenged due to Microsoft's bottomless coffers), and of course to the extreme detriment of the company they were working for (unless you consider them hiring multiple team members and instructing them not to give notice "acceptable").
So when the tables turn Microsoft cries foul. Isn't this a little hypocritical?
Frankly, I feel sorry for Crossgain, since they did little that Microsoft hadn't done thousands of times, yet due to Microsoft's draconian legal department they've had their livelihood taken away.
This is just another example of Microsoft's strangehold on the computer industry, and why they need to be broken up.
Moof!
Folks, what do rich people like Bill G. do when anyone asks THEM to sign ANYthing? They have their LAWYER look at it first. ANYONE who doesn't do that (or worse, uses the bad excuse that they're NOT rich like Bill--read on) is an idiot. We have among our ranks a LOT of intelligent idiots who sign non-competes and other "releases" and contracts that could involve millions made from our creativity and talent--all without the simple expedient of having a qualified attorney take a peek and point out the quicksand in the fine print. SOoooo...if you're saying "Yeah, but I haven't made a zillion in options and sold before the dot-com-bottom dropped out yet. How can I afford a top lawyer to do this for me?" well, there is an answer. Its the one I use for my family's legal protection on this issue and a whole lot more. Go take a look: www.gocallyourlawyer.com Its expert, it works, its nationwide, and it costs a big $.87 a day or less--you won't even have to give up a latte at Starbucks to have it and cover your legal ass. Hope this helps.
You gotta see this: www.gofireyourboss.com To do it, just click it.
Why doesn't this company just move its office across the border and start in Canada? I'm assuming the contract would not be enforceable... does anyone know more about the feasability of this idea. Even if its for only 2 years or whatever.
Yep, my story exactly. I read this contract after signing an acceptance form with my agency. Good lesson to learn, next time I'll know how to negotiate. The n-c agreement is for one year and fortunately covers only a limited field (voip).
l for more info.
On the side, it's worth noting that my company (Net2Phone) was involved in a n-c lawsuit when a couple of our execs left for our main competitor (Dialpad). I'm very curious to see what comes out of this.
BTW, don't think I'm disclosing anything secret here, this was in the news several months ago.
See http://news.cnet.com/news//0-1004-200-3301600.htm
If con is the opposite of pro, is Congress the opposite of progress?
This just goes to show, that you should be reading the WHOLE document before you sign your rights away. If you don't understand what you are signing, then WHY are you signing it?!
Some industries have non-compete clauses up to 2 years which I think is a bit excessive.
If there is a non-compete clause, just ask them to lower it! Mention that you need to be able to support yourself, and ask for 6 months (or less)
If you don't try, it won't get changed.
--
"The issue today is the same as it has been throughout all history, whether man shall be allowed to govern himself or be ruled by a small elite." - Thomas Jefferson
In a number of court decisions in the early 'sixties, non-compete agreements were held to be a form of involuntary servitude - slavery - in many cases. If you work as an ordinary employee and leave to work as an ordinary employee with another organization, non-compete claims are probably invalid (bear in mind IANAL), but if a senior manager leaves and starts another company in the same line of business, non-compete may come into play.
But, if the first organization is very large, say, um, Micro$oft, and the manager is not obviously using some key technology from his first employer to make the second company work, he needs to raise the hue and cry of involuntary servitude.
In the cases cited here, a lot of people need to bring this to the attention of the press, the U. S. Labor Department and the U. S. Department of Justice, as well as the state Attorneys General where these people live. It would be very interesting to see what the State of Washington's Attorney General might have to say about this.
At my former place of employment they presented me with a classic non-compete as well as additional paragraphs regarding any work I may do outside the office or off-hours being owned by them. I promptly X'ed out, initialed, & dated those paragraphs and upon submission told them that I would not work for them under those conditions. When asked about my issue with the outside work I claimed that I was bringing knowledge that I had gained from prior employment and that if I had been bound by similar terms then I would be useless to them. As for the non-compete I claimed that I would be writing off my ability to get future employment within the industry for too long.
Surprisingly they took it well and that was that. I'm sure other suckers signed it and that is what is meant by *read the fine print*. If you've signed broad non-competes then I think I have a bridge (or maybe some twins) to sell you.
AC
This is not Microsoft expecting to win a legal challenge - this is Microsoft banking on the knowledge that their lawyers are bigger and scarier than yours.
This isn't law, this is legal intimidation. This is abuse of a position of power.
... and today's pet project has
Suprising this situation is not. It also wouldn't be suprising if Microsoft took it a couple steps further.
(1) Their non-compete agreement could be expanded to include not being allowed to work for any computer
industry related company for a period of time after termination of employement with them.
(2) A non-compete statement could be added to Microsofts's click-through end user license agreement found
in its software products.
Somehow I think MS's barrel-o-lawyers probably concocted a more legally-sound non-compete agreement than the paper-thin ones you speak of. Then again, due to the same massive legal force, one can only assume that they would be quick to settle a dispute of such a nature given:
A: The large expense of waging such a battle and...
B: The small chance that their contract gets ruled null/void and they have to stop their overbearing practice, thus injuring their ability to retain current staff.
Basically, I bet the contract is OK legally (unless you were to go to a federal court / state supreme court or something and question the constitutionality of someone claiming ownership of your skillset within a certain field), but these folks (the fired ones) could still make a nice dollar or two off of the kind folks at Microsoft for their part in the employees' dismissal.
So you're a future programmer right out of college with your sparkly new Computer Sciences degree. You think to yourself, "Gee, I'll go work at Microsoft. I'll get great pay, and plus I might even meet Bill Gates!".
After 10 months of slaving at Microsoft, you realize that not only are you not getting paid for your 20 hours overtime, but instead of your promised cash Christmas bonus, you recieve two copies of MS Windows 3.11 with a note enclosed "Have fun and don't forget where it came from!".
When you come home and bitch at your girlfriend, you slack over the computer chair and nervously type in www.dice.com . You check out the recent C++ programmer rates and realize that you could work for $2,000 less a year just as long as you got 401K plans. You apply for your job, get accepted, and are living happily ever after until one day you get a call from Redmond, Washington.
"You signed this agreement when you started to work with us! Come back, or face our legal wraith, draining you of those 10 months of earnings, and we might even take your two copies of MS Windows 3.1!" - Well, you don't care much about your Microshit software, but you are suddenly faced with a delimna. Do you fight these convincted-monopolists in court, or do you return to the giant and be cast into eternal slave labor?
This is a classic example of Microsoft throwing its weight around. They know you need them, and while they have you on your knees and helpless, they bind you forever, making a deal with the devil. I look forward to the day that there is equality in the job marketplace. Until then, good luck.
Seeka
BS. Most employment contracts are not even shown to the employee until after they have agreed to take the job. I didn't see mine until I started. It had enough of the standard odious stuff in it that I refused to sign it. I took it to my manager and he said he would sign such a stupid document either. But the point is that I was fortunate. Most employees are pressured into signing these things as a condition of employment after they have burned their bridges! This is not reasonable nor particularly legal contract behavior. It amounts to coercion and to whatever the term is for an invisible contract after the fact. Also, contracts that specify things that are not really legal in the state or context are not binding.
It is true that people should read these things. But a lot of people will not understand them when they read them.
Yes, you have a point that you need to read contracts before you sign them. However, the situation is not nearly as as simple as you make it out. Often a individual worker (yes, even a technical worker) negotiates from a position of weakness.
The company will get along just fine without you, but you may find yourself in serious difficulty without work. There are things you can do to lessen this equality, such as look for new jobs before you've left an existing one, but the fact remains that large numbers of people do not have the luxury of negotiating employment contracts.
There aren't any strong unions or even trade organizations in the technology sector, as their are in other more mature industries, to overcome this fundamental inequality. So yes, it's a noble idea that you don't have to sign a contract you don't agree with, but it doesn't always work that way in practice.
Just because some people are temporarily enjoying high salaries and a scarcity of competition for their jobs doesn't mean the system actually works.
...and should be avoided at any costs. Myself, I haven't signed a non-compete nor will I ever.
I work at the local ABC affiliate. About 2 weeks before New Years' Day 2k, we were told that there were going to be 16 people laid off at the beginning of the year because of a sales agreement with the NBC affiliate. I wasn't present in the room myself, but I was told that all 16 were brought into a conference room and coerced into signing non-competes. Some of the 16 (I think all but 4 or 5) were hired by the NBC affiliate, but the rest either didn't want to work for them or weren't wanted. One of those people wanted to apply at the CBS affiliate afterwards, at which time they were turned down because of the non-compete. He told me that he was under duress to sign the non-compete and that he was going to take them to court, but I don't know if he actually did or not.
Moral of the story? Don't sign non-competes. Period. Even if it means you have to look somewhere else for a job.
_______
Scott Jones
Newscast Director / ABC19 WKPT
FC Closer
...plan to replace all those guys who are leaving because their stock option are worthless.
Now you have to wonder when you sign up with Bill and Steve whether this is the last company you'll ever be able to work for in your profession. That should solve all their recruitment problems.
Eternal vigilance only works if you look in every direction.
I refused to sign one which was bundled in with the offer of employment. That was the first I hear or saw of it. It stipulated that I couldn't work in the telecommunications field for 1 year after leaving or being let go for any reason. This was done "because of the difficulties of identifying and potecting proprietary information." I asked pointed questions and eventually the offer was withdrawn. They also wanted to talk to my boss BEFORE they had made an offer.
Wansu, th' chinese sailor
I have a non-compete agreement, but there's some important clauses:
- the agreement doesn't count when I'm fired
- the non-compete is very, very narrow. I am bound to a radius of 25 km, in which I can't find a similar job (ok, better defined in the agreement, but you get the drift)
the 25 km was interesting.. I work at a local ISP, and there's not much else in those 25 km. however... there's more companies located at 26 km, and my boss won't have a problem with me going to work there (this is specifically why I was quite happy with the 25km clause)
//rdj
No one can understand the truth until he drinks of coffee's frothy goodness.
--Sheikh Abd-Al-Kadir, 1587
Also, being in England means that contracts prohibiting you from working in the same field are worthless.
No, because if you are contracted to work for M$ then you are obviously not in competition with them. However, the instant the contract is up, if you're working on anything else that M$ is also working on, they could use the same legal cheese to try and get you fired.
However, if you only worked for M$ through a contracted agreement (i.e. you work for Company A which accepted a contract from M$) then you shouldn't have been required to sign a non-compete clause anyway. A non-disclosure clause would be much more standard in that case.
Kierthos (IANAL)
Mr. Hu is not a ninja.
It is kind of strange that M$ found out what they were up to. Maybe they suckered M$ into suing them so they can turn around and sue M$ for lost salaries.
An engineer who ran for Congress. http://herbrobinson.us
At my previous job, they just had me sign an NDA and specifically told me that we can not take other employees with us when we leave. That was doing tech support.
When I left there, I went to work for a contracting agency to a large corporation for Java Programming. I signed the NDAs and all, and a lengthy contract between myself and the corporation. I read through the entire thing, but the consulting firm did not give me a copy of it to take home. The non-compete portion specifically, and I had them clarify it, said that I could not compete with the corporation in regards to the project they were hiring me for. It said that they understand that I will work for others (since I am a Consultant, they HAVE to allow it or I would be classified as an Employee) -- just not to compete with this project. It also said that either myself or the corporation could end the year-contract.
Overall, much more lenient than I expected it to be.
http://www.google.com/profiles/malachid
Ah, so that's what happened. I just say this because one of my former employers used to have a Prime mini-computer cabinet - big thing - they used it mainly as a rack mount cabinet. Was beige, with a red strip across the top in front, with white lettering reading "Big Red" - I still don't know what that means...
Worldcom - Generation Duh!
Reason is the Path to God - Anon
In Europe, this would not be allowed to happen. Due to european law, you cannot restrict peoples movement and employment.
;-)
Even football players have been affected by this - - they can move on a free transfer when their contracts are up.
In Europe, microsoft wouldn't be allowed to get away with this. That small start up company could have probably could have counter sued microsoft..
Ha! and they say american is the land of the free
I live in the state of South Dakota (its a right to work state, like I think 22 other states are).
I was working remotely for a company in California and got a killer offer, but I had signed a non-compete. So I went to visit my lawyer, for $50 he drafted a letter to my employer that I sent along with my resignation.
The old employer was going to sue me, but for $180 in legal fees my trusty lawyer fixed that for me. In a right-to-work state, these thing don't mean crap UNLESS you take "trade secrets" with you. Don't worry about a non-compete, sign it and smile, then call your lawyer!!!
Rule of Life Number 2: Remember, it can all go to hell at any minute. --Jimmy Buffet
These people wasn't on crack when they signed their contracts, right? They knowingly did this, so what's the problem?
Imagine you run some company, and hire a bunch of developers. Then you take some project for R&D and give them to implement. And then they see that this project is probably worth a lot of $$, so they turn around, take the half-baked project with them (including a lot of investment that was put in it before it got to them) and make a startup to sell someone else's ideas just because they think they are too smart to play by the rules. I guess you'd be pretty pissed off on such scenario?
The fact that on side of the deal is Microsoft doesn't give the other side right to breach contracts and try to sucker its partner.
The people knew they are going to work for Microsoft and what signing non-compete with Microsoft means. So why they are crying now? They should start crying *before* signing, then it would make sense, not after working, getting money from MS and then deciding they are better off.
-- Si hoc legere scis nimium eruditionis habes.
I used to work at MS and I also used to work for Sun Microsystems .. both have non compete clauses .. which i've signed .. ... they dont apply to ANY field that the company has products for .. only the products that you where involved in .. .. so if i worked in Word (which i didn't BTW) .. then i couldn't run off and join the Corel Wordperfect team (is there still one?) .. if you worked on Windows 2000, then you probably couldn't join Sun and work on solaris .. but you could SUN and work on the mail server applicaiton. .. and its rare for a company to actually try to enforce these contracts..
It still brings up the question of is the project they are working on new or a direct competition. If they left M$ before M$ started whatever project the company they were working for started then who is at fault? The ex-employee for going to work for a company M$ decided had a good idea and wanted to get ahead of the competition...so it pulled a fast one.
I'm still waiting to see any inovation come out of M$.
If ignorance is bliss, the world is full of blissful people
I worked at a startup here in San Jose that was basically the development team of another company who were tasked with designing a product they ultimately turned into the business plan for their new company. If this is the case (as it probably is, considering their dot.net'ish webpage) then microsoft is in the right to get after this startup who probably stole wholesale a microsoft project.
Read what you sign, and know it's reprocussions. If you don't like it don't sign it. Nobody is holding a gun to your head, if you don't like the arrangement then walk away. But if you do sign it then live up to your end of the deal.
-- Greg
Slashdot, would a spell-checker for posting be too much to ask? It's not rocket science!
Do you really read (and fully understand) every contract you're forced into? I think not.
And what the hell does contract law have to do with democracy? Capitalism/Corporatism maybe, but not democracy.
Cheers,
Rick Kirkland
It's not my case, but...
just imagine that someone has been working for MS (or any other company by that matter) and has signed a non-competing agreement.
Then she decides to quit the company, start working on an unrelated thing (a restaurant) and be actively involved in an open source project (like Gnome) in the free time. Would that be allowed in this kind of non-competing agreements?
Just to add a point that I don't think you mentioned:
A noncompete clause in a contract usually describes the region around the company the employees formerlly worked at, and gives a tangible distance from the central location of that company. Looking at Crossgain's website, I can see they're located in Redmond. Big mistake, on their part. If they had moved 1 or 2 cities away (or even a state or two, depending on the terms of the employment contract with Microsoft), then Microsoft would have no legal ruling over them. Crossgain made a mistake, and is paying for it.
Best option: close their shop, and move it. Of course, it'd have to be within an accessible location for all current employees (...if any are left), just far enough away from Redmond to adhere the terms of the contract.
I'm from Canada, and one of my coworkers is a lawyer (one of the good ones - that's why she decided she didn't want to practice anymore), and the company we're in tried for non-compete clauses in our contracts which basically said if we leave the company, we can't do anything remotely like what we're doing now for one year.
She wasn't worried about it. According to her, an employment contract can't interfere with your right to make a living. I'm a web developer, and not being allowed to do that for one year would be an unreasonable burden.
Still haven't signed the contract, though...
This is the voice of World Control. I bring you Peace.
It's not like in Britain, where if you sue someone and lose, you pay both parties legal expenses. Lawsuits hurt win or lose, especially when one side can crush you like an ant.
The mere threat of a lawsuit is enough to get a company to change their tune (unfortunately)
Back when I was in the computer field, I flat out refused to sign it. It said that if I quit that I wouldn't go to a competitor and work for them (because fear of losing secrets). I simply told them "No". Why didn't they fire me on the spot? I was too valuable for them to fire me.
You know, if everyone at microsoft would have refused to sign that document, microsoft would have had to fire everyone or rethink that policy. too bad no one had the cajones to stand up for their rights.
"Tread softly because you tread on my dreams"
I believe it is going to vary a bit from tech industry to tech industry... If you work for Intel or AMD on CPU design there are pretty strict terms about not going to the competition since you have such a level of proprietary knowledge.
The case of non-compete against Microsoft is interesting though, from a practical standpoint what is one suppose to do... not develope any software for anything short of a mainframe.
I haven't let myself get bound by non-compete agreements yet, but doing that has meant making sacrifices on my part and in many cases it would have been easier for me to just go along with things and maybe live by the agreement or just assume "they'll never know". It's a tough decision to make, and one I'm certain most techies (who often lack sophistication business and legal wise or more accurately do not care about it as much as they do the tech) have not put enough thought into.
Crossgain was not your normal startup. It was started by a couple of heavy hitters from M$FT. Basically some of the chief architects of ther XML/.NET strategy. They built it for Microsoft, then left and took a bunch of thier developers. Basically they were (are?) building an outsourced XML integration server (kinda like BizTalk server) on Sun/Java/Oracle kit. Not real Microsoft friendly! Bill said NIMBY (Not In my Back Yard) and squished them like a bug. They have about $10m in funding and unless they get more from Sun the well has dried up. No VC fund will touch these guys with a 10 foot pole.
How embarassing, "...for them to motive the legal terms..." should read, "...for them to modify the legal tersm..."
sigs are a waste of space
I joined a startup this summer and got a pretty good deal with lots of stocks and didn't have to sign any non-compete contract. But as the company grew the board suddenly saw the risk and when it was time for handing out stock options to all employees they added a 6 month Non-competing clause (after quitting) for receiving the options.
The options deal weren't that good (compared to the stocks I already had) so I was close to not signing it. But as I realized I would be the only one saying no to "free" options I signed it just to not look disloyal and likely to leave. Just to not rock the boat, I guess. Still not sure if I did the right thing.
is that many, as far as I know, are not enforcable under the law.
In order to be enforced in court, a non-compete must, among other things, not take away the person's ability to make a living in their chosen profession.
From what I recall of the advice given to me a few years ago, non-compete clauses usually are only truly enforcable when it comes to upper management and other strategic positions where defecting to another company makes you unreasonably dangerous to the company you left.
Well, actually, you ARE allowed to do just that.
Yes, their intellectual property, in the form of confidential company information, is theirs, and you must protect that.
But the fact that you boned up on your perl skills while working for them (or any other skills, as you always learn more, right?) does not mean you cannot practice those skills elsewhere.
That's like telling a Jr. Mechanic that he can never leave your garage and go work for someone else, simply because of his on-the-job experience.
There is clear case law, I believe, that makes most non-compete clauses for grunts, programmers, etc, unenforcable.
I know here in Canada (and I'm sure I've seen the same in the US), just because something is written down and signed does not make it any more legal.. it still must follow the law, and the law says you are allowed to work.
I only speak from a Canadian perspective... but..
I hear all these peopel saying 'don't sign it..' or 'you signed it, it's your fault'. Well.. up here... it's like this.
1) it's common knowledge that these non-compete clauses are compeltely unenforcable, and in fact, basically illegal. you have a right to work in your trade. Many states are like this as well.
2) Every IT company has a damn non-compete clause, for some odd reason. so..
3) You just sign the damn thing, and then ignore it. Nothing they can do about it.
at my last company, i just didn't sign. they handed me a stack of things to sign, and i signed it all except the non compete, which i put in my new recruit folder =) they never noticed, and i was clear to do whatever i wanted..
I think the underlying question is, why did the chief architects and half the developers for .NET feel they had a better chance with a rickety little startup competing directly with Microsoft- than staying with Microsoft? In a way this is one hell of a warning siren, and not about noncompetes. MS is _that_ bad off that the insiders are beginning to flee in organised groups to _compete_ with Redmond? Isn't that against the conventional wisdom? What do they know that emboldens them this way?
I personally have been working as a software developer/systems administrator for software copanies of a specific industry for about 10 years.. Periodically when going to a new job, they ask me to sign an n-c (especially in the last few years). that typically has a two year duration on it. I simply say that if they want me to sign the contract they will have to pay me for those two years as I have been working in the same type of company for the last x years, and can reasonably expect that my next position would be with a similar company (because of the experience and all). You would be surprised how fast the subject is dropped.
Then don't join up. It's your freedom on the line. I'm not sure how much or what it'd take me to sell my soul, but I doubt MS has it. You've already been there and done that though, huh?
In common law it is called "Restraint of Trade" and in general a contract that seeks to do this is unenforceable. But there are exceptions to this general rule.
You won't find out a lot about Crossgain if you go to their Web site:
At Crossgain we are laying the foundation for the next generation Internet. Radically simplifying how people build and deploy applications on the Web, we are solving problems that others think are impossible.
In the coming weeks, you'll be hearing more about us. A lot more. It will be worth the wait.
(Their job listings are pretty discrete, too, though they mention Unix a lot of times and Windows only once.)
Somehow, Microsoft knew enough about what Crossgain was doing to decide they were competing. I wonder how? Did they sign an MSFT non-diclosure agreement that got disclosed internally? Did a 'softie interview and then report back?
Or (as Cooper implies in the second Yahoo! article) has Microsoft decided that former employees can't do any software development (or anything related) at their next jobs, because anything would compete with something Microsoft does or might do? If you quit Microsoft, you can't do anything for a year more technical than flipping burgers?
More info on Crossgain: a story on c|net and a blurb from a company that gave them $10M.
Stupid job ads, weird spam, occasional insight at
And do you mean "voluntarily" in the sense of "If you want to keep your job you have to 'volutarily' sign this piece of paper"? Yeah, right.
I didn't pay for my operating system either
Tx is one and these employement agreements that many sign (i did when i was fresh out of school) are worthless. you should see if you are employed in a Right to Work state, which basically means that employers can hire/fire you at will and you can work for almost anyone you want at any time.
i work for a huge fortune 200 company right now and when some of our competitors tried this crap we took 'em to court and easily had it thrown out.
one thing to note that always sucks, when these companies sue, they sue the former employee and the new employer...sometimes the new employer won't want to pay the cost of lawyers....
BTW - IANAL!!
/* Half alive and half dead too, work is for suckers and the sucker is you. - "Half-life" by Local H*/
That is what a NDA is for. This non-compete shit is more like "we own your skills and thoughts. Not just our technology you are others create here."
He He... you should've posted that anonymously.
One hopes for Microsoft's sake that this is how they are enforcing the contracts. Other interpretations would probably be illegal under sections I and II of the Sherman Act. We all know Microsoft has to tread with care where the Sherman act is concerned.
LedgerSMB: Open source Accounting/ERP
Microsoft makes as much difference in the larger scheme as Saddam Insane on oil prices. Every time Saddam gets an itch our gas prices double and now he's got hemorroids. Take the number of C#, DivX, and X-Box stories we've read and what do you get? Microsoft world domination.
What most people fail to keep in mind about non-competes is that they are only illegal if they fail to compensate the (ex)employee.
A non-compete that says "You can't work anywhere that competes with us" is illegal. One that says "You are not allowed to work with competing companies, and if you are unable to find gainful employment in your field because of the non-compete then we continue to pay your salary for the length of the noncompete." is.
If you need web hosting, you could do worse than here
Yeah, that was basically the basis for the discussions and such in my Law class... it interferes with the right to earn a living, etc. Like you said, it creates an *unreasonable* (that being the key word in laq) burden on the ex-employee. And like someone else mentioned, the company takes the risk of divulging trade secrets and such.
I worked for a company that hit me with an n-c a few months after I started. (Which, btw, violated the terms of my contract, but anyway). The sad thing was it had like 27 different points on it, of which 3 were totally illegal, and were actually case examples from one of my first year law courses. Let's just say head office was still living in the sixties.
The main point of n-c's these days is the threat factor. It may be illegal ... but what individual has the money to fight M$ in court?
Do that many people actually wind up signing contracts that contain non-compete clauses?
Granted, I probably haven't been working in a field lately where my going to another company would threaten any trade secrets. In fact the last time was back in the '80s when I left an employer and there were maybe two other companies in the U.S. that would have found my experience (in GPS) useful enough at the time to want to pick my brain. (Oddly, my new employer did hire me because of that experience -- and for real-time software development -- but in a research environment so I guess my former didn't feel too threatened. They didn't squawk, anyway.) We did discuss non-compete issues during exit interviews though I'm sure this was done out of habit due to other sections of the company doing business in areas that had much more competition.
More recently, the closest thing I've experienced was a clause in the employment agreement as a consultant that stated that I would not work for a client for some period of time (at least a year if memory serves) after leaving the consultancy. (They actually decided it was a good idea to sue a client for stealing someone away from their employ -- IMHO, not exactly a stellar PR move.)
Now I have heard of some cases of Big Five/Six/whatever accounting/consulting firms luring away high powered consultants, partly because of these consultants' rolodexes. And legal proceedings sometime result because the former employer sees that rolodex full of contacts as its IP. Most of the time you hear about these non-compete suits being brought about against high level execs who leave (and take people with real talent with them).
I've heard about many folks who have had judges toss out the cases brought before them over non-compete issues. From what I understand, it helps to have your wife and children sitting in the front row (having them weap doesn't hurt) -- I've never been sure if the guy who told me that story was kidding or not. Apparently, judges are not fond of telling someone that they can't work in their chosen field:
With the popularity of the Internet, chat rooms, and other communication tools out there, how a company thinks this enhances their position is baffling. Having trouble hiring and keeping good employees? Ever wonder why?
--
CUR ALLOC 20195.....5804M
So a bunch of ex-MS employees ended up at a competeting company, MS found out and said "Oh, by the by we had an agreement with these people who said they wouldn't work at a competitor so they are going to have to go or we will go after them in court"
Is that right?
This sounds sort of like the kind of mess that happens when you have tech workers who have to sign off on NDA's every other day just to do their work because of vendor realtionships and partnerships and crap of that nature.
Too much legal stuff happens in our sector if you ask me.
http://www.nonmundane.org/
I've worked at MSFT, through a contracting firm, and MSFT is part and parcel of this problem. If they insist on non-compete agreements themselves, either directly or with a sub-contractor, then they have only themselves to blame for the problem.
That said, I think non-competes are pretty much a waste, as opposed to non-disclosure agreements, for anyone other than senior execs. You just shoot yourself in the foot for future referrals and good will.
--- Will in Seattle - What are you doing to fight the War?
I thought non-competes couldn't cross state lines. Can't these people just incorporate elsewhere? Or even move?
Send your friends messages of love at fuck-you.org
Linux isn't 30 years old. It was written FROM SCRATCH in oh, 1991 IIRC. Which would make it newer than Windows (DOS).
Doesn't Mitnick have a non-compete clause with the NSA?
Anyway, here's some good starting points on your journey to career nirvana.
Dancin Santa
They've had the permatemp thing, they've had the Executive Exodus (including Gates himself, if you want to look at it that way), and now they're the target of a discrimination lawsuit.
They can't even buy other companies to get people: http://www.pbs.org/cringely/pulpit/pulpit19990826. html
Rob
People who don't bother to read their contracts deserve everything they get. Contract law is a very well established part of any modern democracy, and people who flout it are letting themselves in for a world of trouble. Not having read their contracts is in no way an excuse for breaking them, and no court in the world would think otherwise.
It makes sense for Microsoft to do this. After all, they have a hell of a lot of intellectual property they don't want spread around their competitors, and because they operate in such a broad domain, their potential competition includes a hell of a lot of companies. And no matter what the person intends, the knowledge they've gained on the job will affect how they execute their next jobs.
The moral of this story is to check your contracts before you sign them. I feel kind of sorry for the company involved, but they're probably better off in the long run without the kind of idiot that signs something without reading it first...
I'm also from NY, and knowing people who have gone through the NY court system about a non-compete agreement, one warning to those who are thinking along the lines of "it isn't enforceable" etc.
Whether or not it is enforceable is NOT necessarily your biggest problem. If you sign such an agreement, later leave that company, and they claim a violation of the non-compete (even if you didn't ACTUALLY violate anything), THE BURDEN IS ON YOU to prove that the contract is not enforceable. This means that you have the great expense of hiring a lawyer to prove this in court, even if you win. Also consider that these suits can be dragged out by your former employer for many years. While the suit is unresolved, keep in mind that the suit may have consequences on who may be willing to hire you. Or if you started your own firm, it may scare off potential investors. All of this, even if the company suing you is utterly wrong.
As far as the legality of the non-competes go, from my understanding (IANAL) they are legal as long as they fall within certain constraints specified by the law. For example, they must have a limited geographic area - a company can't make you sign a noncompete that covers the whole world. Maybe they could say you can't work for a competitor west of the Mississippi (arbitrary, yes, and in some ways illogical considering the global economy, but such is the law). The contract cannot preclude you from being able to make a living (ie if you're a programmer it can't preclude you from working for any other software firm, though they may be able to specify certain subsets of software firms as off-limits).
If you are presented with a non-compete as a condition of employment, try to see if you can get them to hire you without it. If you know other employees of the company, find out if they had to sign. If they did not, this should help your case.
Also note that non-disclosure is a different beast than non-compete. Non-disclosure is much more acceptable, you aren't precluded from working for a competitor, you just can't share any proprietary information with your new employer. While this can be a tricky area (some companies seem to think that anything is their proprietary info, even if it's something that clearly is not - such as your general C++ or Perl skills - that sort of arrogance tends to appear particularly in those cases where the employer provided training)
My biggest advice - TALK TO A LAWYER BEFORE SIGNING ANY EMPLOYMENT AGREEMENT. It may save you a lot of stress down the road. Also try to get a lawyer who is familiar with the employment practices of the industry you're in - they can give you information about how common things like requiring non-competes are in your specific industry.
And again, talk to a lawyer. You don't want your career to get fouled up over a lawsuit you could have prevented with some prior diligence.
This type of 'agreement' doesn't always hold up in court (at least here in Canada). During my grade 12 Law class last year I remember studying a few non-competition cases and a lot of them were declared void, largely due to several 'freedom' laws and such we have here. There were other reasons that they were overturned also, but are rather lengthy to explain... and I wanna get back to hacking. ;)
Regards,
- Jester
The way it was explained to me, your employer has a right to expect you to not give confidential information to a competitor, even after you are no longer employed by them. But no contract can take away your right to an honest living in your trade.
For instance, if you take code or business plans with you to a new employer, that's a no-no. But if you just take your Mad Perl Kung Foo, well, there's nothing your former employer can do about it, even if you are going to a competitor. And even if they paid for training to develop your skills. You own the general skills; your employer owns the actual work that you did for them. (Well, there is one thing they can do -- pay you your salary for the length of the agreement, so you can sit on your ass and do nothing...)
And if they threaten nasty stuff, get a lawyer and give it right back to 'em: in most cases, those agreements aren't worth the paper they're printed on.
Ok, it's as simple as this:
These people voluntarily signed a no-compete agreement with Microsoft. That makes Crossgrain's actions theft.
You shouldn't be allowed to steal employees from a competitor. What Crossgrain did was as wrong as stealing hardware from Microsoft. In the information age, the contents of a person's mind are assets and a company has a right to protect its assets. Employees have a duty to their employers just as employers have a duty to their employees. As long as you sign a no-compete clause you shouldn't be allowed to learn your trade at one company and then practice it at a competitors.
--Shoeboy
Back in the last century, I was working for a defence contractor that was putting together a proposal in response to a DoD RFP for some work involving space systems, L-band communications, spread spectrum, etc., etc. Rumor had it that we had essentially won the competition for the work but lost out when the DoD decided that they didn't want to have `all their eggs in one basket'. Perfectly reasonable, actually.
As it turned out a major, Texas-based electronics company (don't want to give it away) had won the contract. Guess who ran a full page ad in the next weekend's local Sunday newspaper looking for electrical engineers with experience with ``space systems, L-band communications, spread spectrum, etc.''. Was really funny. AFAIK, no one quit and went to work for them but it certainly would have been interesting how the company's non-compete clauses would have held up. This was defence-related work of a classified nature and there aren't a lot of players in that ball game.
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CUR ALLOC 20195.....5804M
"What, the term that says we own everything you ever think of while you work for us, even if it's a recipe for cookies? The one that says you must never sue us? The one that says we can claim the money off you if you make a mistake that we feel loses us money? Those are perfectly standard terms. Any contract would have them; they're normal throughout the industry. Don't be so unreasonable and difficult; show a little trust. Sign."
*Don't* sign. Those terms are not normal. I have had contracts modified before starting work because the terms are overbroad. My current contract does not contain any overbroad terms (and I had that clarified too). I recently read my flatmate's contract and it contained no overbroad or nasty terms. Don't let an employer fob you off with this nonsense; nasty contracts are a sign of contempt for the employees and if they're not prepared to fix the problems, if they expect all the trust to be on your side, then you don't want to work there. Look elsewhere.
I've never been shown a contract until after informal acceptance of an offer myself, but *next* time I'm going to insist on seeing the contract before coming to a second interview. I've seen some incredibly nasty ones, and I don't want to get my hopes worked up about a job I find myself unable to accept.
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Xenu loves you!
In Europe or at least here in France, contracts like that , are a sword that cuts bot ways.
Since we have a document here calle the bill of human rights, anybody has the freedom to work. And that right is god damn above just any law there is.
However, If Microsoft would deside to hold me to the contract I signed, the standard procedure is to get a lawyer, take them to the courts and hold them responsible for taking away my right to work.
They would then have to pay me for 5 years (or whatever time period the contract stated) for not being able to work for the competition.
However, I would be perfectly free to work for whomever else I would choose, 100% job, all perfectly legal, and there isn't squat MS could do about it.
--
Why pay for drugs when you can get Linux for free ?
echo '[q]sa[ln0=aln80~Psnlbx]16isb572CCB9AE9DB03273snlbxq' |dc
Actually there may be a gun.
Not all people have an easy time getting a computer job, and if a decent company DOES decide they want you; you may have to choose between signing your freedom away or stick to your principles and flip burgers for the next few months.
Personally I have been trying for months now to find any kind of computer job; right now I am perfectly willing to sign lots of crazy stuff if it will get me a permanent job.
guvf vf zl fvt
If you have links to any such articles I would greatly appreciate if you could post them here (or email them to me at the above address). It's fascinating that Microsoft parades itself around as the supreme innovator when they are doing stuff like this which is practically as detrimental to innovation as you can get. I've started a web page with a list of links demonstrating this and the articles you have mentioned would make nice additions.
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Free P2P Backup, Windows & Linux
(I interviewed there, and turned down an offer, but I received the paperwork before I made my decision)
Regards,
-BK
Chemical Blog
being the first one to prosecute against the right to innovate, but _OUTSIDE_Microsoft? :]
btw, Joel Spolky makes some good comments about non-compete clauses here (<- i mean, there).
Same shit: non-competing with microsoft means not working with IT in itself.pS: I wonder if the Crossgain crew wear these neat t-shirts.
My current employer required me to sign a non-compete agreement, but I didn't sign it until after I was with him for almost a year. And even then the agreement is more of a "I wont steal your customers like you did to your old employer" agreement. He considers non-competes to be wrong. In his words, "You can't stop a person from making a living, but you can protect your investments." So I am free to work at any competitor I want to when I leave, as long as I don't try to take the customers with me when I leave. The agreement is for 2 years. So after 2 years all customers are open game to me.
I tend to agree with my his opinion that you can't stop a person from making a living. And by enforcing a non-compete agreement on an employee, the employer should have to continue to pay the salary of the employee for the duration of the non-compete agreement. Since they are essentially being told to sit on their ass while the time runs out.
I know it doesn't really work that way, but I wont sign a non-compete that forbids me to work at a competitor unless something like that is in the agreement. Also, I have learned to always ask in the interview if there are any non-compete/NDA's that I am going to have to sign in order to be an employee of this company. And if there are, I ask to see it at that time. If I have concerns, then I can address them BEFORE I burn my bridges at my current job.
The moral? BEWARE OF BOILERPLATE! Even in the most tame circumstances, things like that slip in. Read what you sign.
(I'm not sure if crossing out a section and initialing it really nullifies it, but my father's a lawyer, so if it gets ugly, I might have a chance at receiving justice)
-- "I am disrespectful to dirt. Can you not see that I am serious!"
From what I learned then, such clauses have two competing features. First, its difficult to enforce them. A contract which takes away a persons ability to earn a living is invalid. That's the good news.
The bad news, as pointed out by my attorney, is that the threat of legal action itself may be a deterrent to getting hired. No matter how narrowly the clause is written, it might be construed by a potential employer as a lawsuit waiting to happen, and whothehellwantsthat.
What's a sig?
If you think non-compete with Microsoft is tough, imagine non-compete with IBM (and of course any affiliates ;-)! The company I worked for was bought out by IBM and one of these lovely non-competes floated my way.
I feel for people in this situation. Big IP based companies have a vested interest in having as wide a non-compete agreement as possible. There is also a strong disincentive for them to motive the legal terms of the agreement just because one person won't sign them (the legal bills for having to go over modifications alone are horrendous). My non-compete finally did get modified (by myself) but only after I was told by several company officers and lawyers that, "it couldn't be modified in any way."
Now, from what I was told by my own legal counsel, non-compete which are overly broad are tough to enforce, because they cannot be used to prevent people from finding gainful employment. Also, if you can demonstrate that you signed the agreement under duress (i.e. "We will fire you if you don't sign it.") they are not legally enforce it. So there are ways to get around them.
So, more than likely, there WAS something fishy about what this company was doing, otherwise Microsoft wouldn't have been able to excert this kind of leverage on them.
sigs are a waste of space
Couldn't non-compete agreements potentially deny microsoft contractors any former microsoft employees?
The U.S. has numerous laws re: restraint of trade. Most of these non-competes are thrown out, because they restrain trade. Companies unfortunately have the upper hand since they have a staff of lawyers on retainer so there cost is essentially -$0- while the ex-employee may find the defense costs exorbitant.
If it's ever an issue you can also have you new employer agree to defend you in case they pull stuff like this. If they want you bad enough it's no big deal since they have lawyers on retainer too.
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Knowledge is power. Knowledge shared is power multiplied.
Don't have a fax? Maybe the local copy shop downtown will allow you to receive faxes for a fee. I've known drug stores where I received faxes regularly.
Read the contracts thoroughly. You want my best advice, no matter what it says, take it to an attorney.
Make it clear to your new employer that you're going to be paying to have an attorney review their contracts, and if they make any changes later you're going to have to consult an attorney again. If they give you a hard time about this let them know that you'll be billing them for the additional expense.
Now, it's very important that you've asked up front for your contract. If the contract hasn't arrived before the day you're to start work, call in and say you can't show up because you haven't had an opportunity to see the contract. Tell them, as earnestly as you can, that a contract is a serious commitment between you and them and you wouldn't dream of signing one without reading it first, at home, without them watching you, and having access to an attorney.
If they give you a contract you haven't seen before when you arrive, inform them that you'd made clear your desire to review any contracts ahead of time and walk out.
If they're really worth working for, they'll get you the contract to review. If you're the kind of person for which it would really be an issue to have a non-compete agreement at all (exec, high-level engineer etc.), then they're not just going to let you go work for someone else after you've made it clear they insulted you and tried to deprive you of your right to make informed decisions about your own future.
Did you get the job through a headhunter or contract employment agency? You should know that they're paying, at minimum, 30% of your first year's salary for the headhunter's fee to hire you, or 30% of your hourly rate to the agency for the entire time you work (not just the first year). Consider how valuable you must be if they're paying this much for you, so really it's not that much to ask that you be completely informed before showing up to work.
To make it crystal-clear: Your decision to accept the job or contract should be based in part on full information about the contracts you will be signing. Do not make this decision until you've read the contract. Tell them that acceptance of their offer letter is conditional on reading their contract first.
I'm not kidding about this and this is not a troll. I really mean this and I'm speaking from hard experience. I've been a software engineer for thirteen years now and have been running my own independent consulting business for almost three years (by independent, I mean I don't work through agencies, so I'm on my own when I sign a contract).
You think you really need a job? Tired of flipping burgers - or think that's what you'll be doing if you don't sign? Thimk of the months or years of misery that will result if you make a rash decision right from the start. Not only will you regret it, but you may lose tens of thousands of dollars as a direct result of taking this job, rather than turning it down and finding another, or negotiating a better contract.
There's something called "opportunity cost" that many managers know about but not a lot of regular employees. It is the cost of losing the opportunity to do something else. You may think you've gained by getting a job, but you may have lost far more by not turning it down and taking a different one, or getting rid of that noncompete so that when this job is done (and no high-tech job lasts forever) you can get the rewarding job of your choice.
Michael D. Crawford
GoingWare Inc
-- Could you use my software consulting serv
After Posnik Yakovlev completed Saint Basil's Cathedral in Moscow, Ivan the Terrible had Yakovlev's eyes poked out so he could never build another building to compete with St Basil's beauty. Now there's a real do-not-compete clause. You kids these days have it easy.
Read the rest of this comment...
Carousel is a lie!
There are two solutions for non-compete clauses.... #1: Ask (require) that the if the employer thinks -- if you are working (or considering working) for a company that would violate the non-compete clause, that if you get a legitimate offer from the company, the "old" company must pay you wages until the end of the non-compete clause, or release you from it. #2: (my preference) Start a union. It is about time that the software profession had one.
I'm currently working at a real estate place, just. When I started I had to sign something saying I wouldn't steal any clients when I left. I'm the IT Manager.
I'll sign an NDA no problem, but not a non-compete - Too wide ranging, and I'm not going to sacrifice future comfort for present comfort. I've been approached to sign non-compete agreements on two different projects - One we both walked away from, and the other I worked on, but they dropped the non-compete. If you have the ability to do the job well, why encourage the client/company to believe they own you? There seems to be no big shortage of work out there.
air and light and time and space
I said "ressurect" a 30-year old OS. And it was 1989.
I didn't pay for my operating system either
But since MS does make almost every category of software product, couldn't they argue that if they're not working for the competition making either office productivity suites or operating systems (where MS makes most of its sales revenue), that the non-compete clause would be invalid?
In Georgia, we have a 'right to work' statute. It boils down to that non-competes essentially are meaningless, as no one can restrict your right to work for whomever you wish. I signed one at the first place that I worked in the IT field, and even the company's layer, who was one of the owners, admitted that it wouldn't hold up in court.
Of course, the flip side is that a company can fire you for any particular reason, as long as it doesn't violate any Federal statutes.
If you can't beat them, embrace and extend them.
I sign those things all the time. Thankfully in California there is a law that keeps them from being upheld in court. I think its called the Freedom to Work Act or something like that.
...due to the fact that in this case, they aren't really the bad guy. While I feel bad for the 20-something people who got shafted, they shouldn't have underestimated the power of MS and it's lawyers. MS was in the right here, and while the "competition" is a bit ambigious at this point, hopefully people will learn from these mistakes, and get better contract/deal from MS (or whoever) from here on out.
Yes that _is_ pretty lenient. After being accepted for the job, I usually ask for all contract papers, I specifically ask for the NDA or any other 'binding' contracts before signing the offer letter. Its also preferrable if you fax that request and have a copy of that and the fax as well before you sign it. This way after signing the offer letter, if the HR dept swings by your desk and drops off other binding agreements, at least you can say "no" and "i _did_ request all this before signing on ". In one of my first jobs, I was given a pretty stringent non-compete (telecom firm) and ever since then I have always asked for *all* contracts before sigining the offer letter.
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The number of the beast
My brother was told by a lawyer, that the companies that craft these non-compete agreements can not prosecute you, or have a hard time doing it.
All comments are my own (Unless I am having a out-of-body experience).
Some years ago, I worked for a small UK company, owned by a US company. Then the US company were bought by Prime, who tried to introduce new contracts.
Among other things the new contracts had a non-competition clause. The competition was defined as anyone making computer hardware or software of any kind. We objected and pointed out this was almost certainly an attept illegal restraint of trade under UK law, and the new management agreed - "Don't worry, we don't really mean that bit of the contract". "So you won't mind deleting it?" we said. "No, we need it there just in case".
Similarly with the anti-trust clause that said that any meeting or conversation, of any sort, work related or not, with anyone who worked in the computer industry, had to have written minutes. Those people with spouses working in the industry found that one particularly objectionable.
Eventually well over half the workforce returned the new contract letter saying "this is unacceptable for the following list of reasons", and they were forced to change it.
The manager whose initial response was "nice try, now let's see the real terms and conditions" eventually won his unfair dismissal case.
When I left some months later, about half the names on the old phone list in the machine room had already been crossed out, people were using desktop backgrounds of scanned job adverts, and one department had a "will the last person to resign please turn off the lights" sign.
They had recruited new people, but the company didn't last much longer (and Prime's minicomputer business didn't either).
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rant
See more here at California Public Policy Against Enforcing Non-Compete Agreement Trumps Employment Contract "Choice of Law Provision".
That apparently happened to the builders of the
Taj Mahal and the pyramids. In the case of the
pyramids, this was so that no one finds out how to
get the treasures.
"The most incomprehensible thing about the universe is that it is comprehensible" - Albert Einstein
Ah, Microsoft Bob...
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Never mind Spamassassin. When's Spammerassassin coming out?
What if you don't sign? If you accept a job offer, but refuse to sign the non-compete, what can a company do to you? Fire you? Can you claim that they were trying to make you sign an illegal document and get your job back?
Let's get this straight. If an MS employee quits his job, his noncompete agreement basically prevents him from getting any other IT job, since MS's competition is basically everyone in the software business. Might as well just lay in the middle of the road and wait for a redneck to change lanes.
-Billco, Fnarg.com
Of the flurry of paperwork that companies throw at employees these days, the noncompete agreement is the most Kafkaesque. How, indeed, are you supposed to work elsewhere if you leave your employer for whatever reason?
I don't begrudge companies making employees sign non-disclosure agreements. Even the noxious email policies they're coming up with these days (where they more or less reserve the right to dismiss you for using naughty words in an email message if they feel like it) are nothing compared to the noncompete agreements. The noncompete agreements are the only ones that deny you the ability to make a living after leaving the company.
My policy: never sign 'em. I actually did lose a job once for not signing one -- even though I had been performing fine, my "promotion" from non-probational status was contingent upon signing the noncompete. Once the probationary period was over, so was my job. Other subsequent employers have somehow let me not sign their absurd noncompetes, perhaps because I didn't go trumpeting to the whole world not to sign them.
Here in texas, non-compete agrements are not valid. Our texas supream court justices knocked them down. Happened over 3 years ago. NDAs still apply of course... But I STILL dont like Bush!
On your first day at work, when they're handing all of the things you have to sign to you and issuing you rubber bands and a stapler, start reading the stuff. Read it slowly. Your new boss or the personnel doofus won't hang around waiting for you to finish. After perusing the documents for a reasonable amount of time (20 minutes is good), return the stack of documents to the personnel guy. Just "forget" to sign the non-compete agreement.
Few personnel directors are anal enough to check all of the documents.
Another variant that isn't so innocent but still plausible is to rip the signature page off the agreement. This is especially good if you have a chance to take the agreement home before you sign it.
Make sure you sign the tax stuff well and legibly, because they are sure to look at that and you need it to get paid. If there are any problems with those they will likely check the other documents too.
It is even better if you arrange to have a pen that is on the edge of quitting, and sign one or two of the documents with that pen. That way if they ever do check they'll just give you the benefit of the doubt.
If someone ever notices that the agreement isn't signed, just act very puzzled and say, "I'm sure I signed it." As long as you let people think you're clueless, they'll give you a lot of slack.
Another company I worked for never got an I-9 (where you have to give ID to prove you're an American) from me until almost two years after I left the company. That was real fun.
Better yet, get an EFax account. It's free (for receiving) and delivers your faxes through e-mail.
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Sleep is just a poor substitute for caffeine, anyway. -Bob Lehmann
My advice to all the young people I meet today is: don't sign anything. They'll come after you with big words and pretty ladies, but don't give in. Don't ever let them take your signature. Once they have your signature, they can start extracting things from your bank account, and soon you won't have anything but your social security check to fall back on. And then where will you be?
I haven't signed anything in over thirty years. When the UPS guy comes to my front door with a package slip for me, I hide in the shrubbery. When bill solicitors show up demanding compensation for overdue ballances, I pretend I'm Swiss and don't speak the language. They've cut off my gas and water a couple times, sure, but that's the price you pay for true freedom in this country.
Don't sign anything. Just trust me on this one.
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Judging from the employment opportunites at crossgain, they're developing for Unix.
I refused to sign my contract for ~3 months when I was temping at MS.
They nagged but I still got paid.
Eventually I found a better job.
Never did sign the new contract.
It asked me to waive all rights to take legal action against MS.
--Shoeboy
Well when I was let go from a large company a year ago, I was back on the market looking for a suitable job. Some of the offers looked too good to be true and when I went for the interview I was told (luckily) that I would have to sign an NDA and have a similar 'will not work for a competitor' agreement to sign. Imagine if I found about the agreements after I accepted the post and was part of my 'orientation'. Then i'd have had to quit before I start. I personally dont mind an NDA, but i *do* oppose to being this close to being a bonded labourer.
...
No matter how much money they promised me I would never have taken the job, cause apparently according to the clause I cannot work for a competitor even if they fire me.
My advice: No matter how much green they throw at you, unless you have the freedom to leave and do your own thing, dont take it.
The number of the beast
This is so bogus given that while I worked at Microsoft as a contractor several years ago, it was common knowledge that MS poached talent from competing companies by offering the lead developer money to leave that company with no notice and taking as much of their work with them as possible so as to cripple the company's marketability.
- tokengeekgrrl
"The spirit of resistance to government is so valuable on certain occasions