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Fair Compensation For Non-Compete Clauses?
LL writes "This article notes how non-compete job contracts allows indirect control of one's actions, even after leaving the direct employment of a company. Apart from the business ethics of using them as anti-competitive measures (a separate topic by itself), the question is what should be a fair compensation for removing yourself from the technology environment where skills suffer alarming bit-rot? Other sectors (e.g. banking) have 'gardening leave' where they basically pay you to remove yourself from the 'inner fraternity' before joining a competitor, but what should be a fair compensation for an enforced pause in your career? 6 months @ 150% base pay? 200% @ 3 months? Or are there standard clauses that IT workers have widely accepted as the norm?"
In my situation, when my company got acquired, they made it clear that what I got in exchange for signing the non-compete was the value of my stock options. Which in my case was considerable, and it was also made clear to us that all senior people needed to sign it or the acquisition would not go through.
My non-compete was pretty specific (can't work on products that are in the same market that the product I was working on addresses), so it doesn't limit my options very much. There are a lot of other interesting jobs in my area that are in companies that do not sell products in the market space that my non-compete covers.
In my situation, given that it was necessary for the acquisition to go through (which was a huge windfall for me), and that it only limited my options a little, I decided to sign it.
How about a topic dedicated to the imminent destruction of VA Linux and to the spinoff of its holdings, such as Slashdot, for instance?
Oh christ. These incoherent mumblings get modded up to +3. Unbelievable. What the hell is your point? I do not understand the moral of this story, and I seriously doubt that is entirely my fault.
The same is true with non-compete clauses. When every company inserts them into employee contracts and says "sign or we won't hire you", then the argument of "just don't work there" might as well be reworded to say "find a new job field to work in". Not a valid option. And while they may not be enforcable (as in California), non-compete clauses need to be outlawed and outlawed retroactively.
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Don't bother renegotiating. You can reword any contract or agreement on your own by simply blacking out completely all objectionable language. You've signed their form, and it won't cause you any loss.
If they send a copy of the original form to you again, black out the crap again and send it back. If they ever tell you that you must sign the exact statement that they give you, There probably is an implied threat involved.
If you feel forced to sign something you don't want to sign, always add the words "Under Duress" with your signature.
This knowledge comes from a law class I had, I am not a lawyer just a Comp Sci who as part of one of my degrees had to take some legal classes. The teacher was a lawer who had just won a case for an employeer who sued sued a former employee. 1) They are enforceable, if you told to sign one expect the employer to enforce it. 2) Generally they are limited by some geographical location, a common example for this are local news readers most will an agreement not to go work for another local tv station. 3) They have to be limited by some period of resonable time. Designed to prevent competition with the company. 4) You generally have to have a high skill level to make it enforceable. A burger flipper is unlikely to have a court enforce one however if you were the person who designed the food for some fast food restaurant expect to have a court prevent you from starting up a similar fast food restaurant. As expect a court to enforce it more if you have a PHd then if you never graduated HS, you were smart enough to know what you signed when you signed it. 5) They can only prevent you from a similar type of job. If you are a highly skilled network person, then they probably cannot prevent you from taking a job doing non-network C++ programming. That all said, there have been exception for example read the tale of the founder of Atari, who then went to form Chucky Cheese pizza or Perot after he sold his computer consulting company.
They can be it depends on which state you live in and how it is worded. They can not prevent you from earning a living. What you really need to do is talk to a lawyer because it depends a lot on how it was worded.
They can prevent you from taking information you got inside the company (trade secrets etc) and using them else where.
Erlang Developer and podcaster
Twice in AM did I temporary lock out two different IT Specialists.
Huh?
One was because he going to porn sites, then, deleting the records in the ADC of it, and the other was because he was viewing other people's emails.
Okay, these are reasons for termination, not pros for making people sign non-competetion agreements.
Their contracts allowed me to suspend them upto three months at only 50% advanced pay and that they weren't allowed to work in the same field during that time.
That's all fine and dandy... I really don't know what that last point has to do with getting terminated/suspended for doing something wrong.
I also find that it would be despicable to tell a corporation that they couldn't hire permanent replacements for me.
Why? They're perfectly pleased to say you can't find a replacement for them.
Make me aerodynamic in the evening air
--
Now, while the signing of a noncompete agreement doesn't make a lot of sense when you're working in a generic IT/maintenance job, it often makes a GREAT deal of sense when working in a more specific technology company.
If I hire an engineer to develop products for me, I am absolutely within my rights and reason to ask that they do not perform the same services for a competitor for a certain time after their employment with me expires. Otherwise, it would be very easy for someone to come into my company, soak up my technology, business plans, and clients, and then give me the finger as he or she leaves to a cushy job at my main competitor, who would be happy to pay a premium for my business secrets.
Proving that information was moved from one company to another is almost impossible - but a noncompete agreement can do a great deal to help maintain the employer's IP. Nothing wrong with that at all; I don't understand why people are decrying this so much.
A possible compromise is to list, in the contract, the specific industries or product areas which are off-limits. This would give the employer the protection they deserve with the flexibility the employee deserves.
Cut the partisan rubbish. Non-competes are not legal in some liberal states, including California. And it's bit the liberals who tend to favour employers over employees
I would have thought "wrongful act or threat" would imply "unlawful" (though not necessarily "criminal"). What's the difference between "wrongful termination" and "unlawful termination" ?
Agree to a pay cut or be fired. Sign this agreement to bathe my dog every week or be fired. Sign this agreement to work 80 hours per week or be fired.
I think those are all unlawful. Is it legal to reduce an employees pay without changing either their job or working hours ? Is it legal to require employees to bathe the boss's dog ? Is it legal to require employees to work 80 hour weeks ?
Offtopic?????
This is INSANE! How can this be offtopic?
I don't blame the moderators, I blame the meta-moderators. Get off your butt and police this place.
Has anyone noticed an upsurge in crappy moderation lately? It seems that in the past month everywhere I look there's a goatse.cx troll marked insightful, or comments like this one marked down.
Come on people, meta-moderate once in a while.
Sheesh.
If tits were wings it'd be flying around.
You're wrong about that.
/. karma was right there in black and white.
I saw my PERMANENT RECORD the other day and wouldn't you know, my
If tits were wings it'd be flying around.
That's pretty straightforward, no?
In the case of a company that came by with a new "agreement" I simply point out that an agreement isn't binding without all six elements of a contract, one of which is that each side has "valuable consideration." If they want to offer me valuable consideration (continued employment is insufficient) for signing an additional agreement, well, we'll have to negotiate that.
One example is the "agreement" passed around at Linuxcare about the new employee handbook. It purported to cancel all previous contracts (such as the one for salary and stock options). I returned my own form stating that I had read and unerstood the employee manual -- but not that I'd agreed to it. No one ever said a word.
Unfortunately, I've *had* to learn to be tough as nails in this business because, over 25 years, I really HAVE seen every kind of sleazy stunt pulled.
_Deirdre
"If a company makes you an offer without mentioning a non-compete and you accepted it, you have a contract."
I previewed it and it looked fine, it just garbled upon posting. Gar.
_Deirdre
No, because the fundamental concept of a contract requires that it be an arm's length transaction -- and that's not. It is instead a hostage situation.
_Deirdre
California Business & Professions Code 16600-16607.
Special point of interest:
16600. Except as provided in this chapter, every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void.
Note: IANAL
To put some perspective on the problem, if people from the [censored] community spill all they know, they'll be jailed and possibly be shot.
... Hardly. Just ask the people who had to pay for the repair of the flawed Hubble mirror. If somebody had thought to ask for an open anonymous review of the lens polishing parameters, the whole debacle might have been avoided.
But are the skills they have acquired working for that community useless and worthless?
The secret of, uh, pardon me, path to success is the ability to apply knowledge without revealing details about what was being worked on that required the acquisition of the knowledge.
Its possible to have non-competition clauses that restrict one from a particular application domain without its impeding with employment in a related but non-competing domain for a specified period of time.
In effect, if you work for A, you shouldn't go work for ~A to do the same thing for a while. Specially if you work in the [censored] community.
That doesn't mean that you can't apply the skills gained while working for A to solving the problems of B or C. The marketing has to be done by skill not domain knowledge.
MSBPodcast.com The opinions expressed here are my own. If you don't like 'em... Think up your own stuff.
I have heard (anecdotally, I Am Not A Lawyer) that in some jurisdictions, judges don't fall for the $1 sillyness. The consideration requirement can be "vaguely reasonable (by some wild stretch of the imagination) consideration".
It's not neccesarily as grim as PorcelainLabrador makes it sound...
The laws regarding non-competes vary from state to state. In some states, the courts are very unwilling to enforce a non-compete agreement that would effectively require someone to relocate in order to practice their trade, or which has provisions they consider overly broad (prohibiting a former bank manager from working in any capacity involving finances, for example.)
For the record, IANL; but I've consulted with a couple on non-competes I've signed while working in Pennsylvania. The above poster's comments are still entirely valid - get a lawyer to check the agreement before you sign, and don't sign any contract until you understand what it means to you and what the implications are.
"Great men are not always wise: neither do the aged understand judgement." Job 32:9
In that case my number 1 option is this. My name and signature have several letters in common with the phrase "Won't Agree", so if I am forced into an agreement that I don't like I write cursively "Won't Agree", that satisfies HR and if I decide to do otherwise, in court I can say "I didn't agree to this, look at the paper it says that I "Won't Agree" to those terms"
LK
"Hi. This is my friend, Jack Shit, and you don't know him." - Lord Kano
Well, that's unethical, since you're "tricking" HR into believing that you agreed. But unethical or not, it's a cool trick.
Not at all, if I don't lie. As long as I never verbally agree, it's their fault, not mine if they can't read.
LK
"Hi. This is my friend, Jack Shit, and you don't know him." - Lord Kano
I signed a non-compete which essentially stated that I cannot work for any of my company's top 10 competitors that are published on on a list.
They have never published a list, so if it were to ever come to a legal battle, I could simply point that fact out. Besides, I highly doubt that they would enforce this if it were a senior-level engineer or manager, or someone who could seriously damage the company.
I signed the document because it specificly described what a competitor was. I felt that there were plenty of other niches where I could utilize the same skills in this industry where I would not be competing with my company.
A non-compete clause has two basic functions. One, it "protects" the company from its competitors (they can't hire the talent with specilized skills in the field) and from your market value, by innhibiting you from changing jobs (long time spent unemployed or working outside your field at lower wages).
A non-compete compensation package that basically paid you for the period you were not employed would satisfy part 1 but not part 2, since you would have the ability to basically quit any time you wanted and pick up a pay check until you could go to work for the competitor. They're not going to pay you to fsck around until the competition can hire you.
I'd ask for 3 weeks of pay for each year of service, and full health benefits for the entire non-compete period. This ensures that they give you something in severance to help tide you over, and gives you an incentive to not job hop often since the payout will be dependent on your long-term loyalty.
I'd also negotatiate the non-compete to be contingent only on resignation or termination for cause, and not on involuntary economic termination. Who wants to get laid off AND told they can't get a job?
If they can "require" a non-compete at all your bargaining power is probably weak to begin with. If you can negotiate something that "gives" them something without demanding a free ride from them, you're likely to get something in return.
A variation on the non-compete clause is one seen frequently in contracts that consultancies issue to contractors. Basically, if you get hired by one company to go do work for another, they will nearly always pursue a clause in the contract preventing you from going to work for that company for some period. So, if The A Consultancy hires you go to work for The B group, they'll probably insist that you not work directly for the B group for some period of time (a year is common). This prevents them from pulling a "cut out the middleman" maneuver.
This can get interesting once the layers of indirection start to get thicker, though. Let's say, from the previous example, that The B Group is doing a contract job for C Incorporated. There's rarely anything in the contract that prevents the A employee from working for C, even though the effect is largely similar. I know someone who infuriated an old employer by doing exactly that, even though what she did was within the bounds of the contract, and even though her old employer had basically brought it upon himself by treating her like dirt.
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"You owe me a case of beer. Sucka'."
-- Michael Chermside
...yeah you caught me...
...and yes, if you so annoy me I will post all of your source code on the net AND email it to every one of your competitors.
So do you still want to make an issue of this?
Go ahead and sue for damages - but remember you won't get amymore from me than what I have. Who will be hurting more after the dust has settled?
I am very small, utmostly microscopic.
Bah. Socialist hogwash. The engineering field isn't saturated, except perhaps in comparison to the computer field. The teaching field, particularly in K-12, is facing a crisis due to lack of people. Unions are a crock of excrement, especially for skilled workers. And they can't stop employers for firing or laying off people at the drop of a hat anyway.
What we absolutely don't need is unions or "professional" licensing in the computer business.
I was once in a situation here in Ontario working directly for a software contracting house as an newbie just-graduated engineer. A client of theirs (a major aerospace company) was so pleased with my work that after a year of being there (I was working on the ISS robotic control test systems and was nominated for the companies' Gold Medal -- as engineer of the year -- didn't get it, but what the hell) that a senior director (and lead scientist) from the board of the aerospace firm actually stopped by my desk. He said he personally reviewed my work and wanted to offer me (unsolicited) a job working for his "Advanced Technologies -- Special Projects" group at nearly double my then current salary (he said only company employees were allowed to work for the group, hence the offer). Unfortunately one of my fellow employees (from the contracting house) overheard the offer and the bastard called it in.
When word got back (to the contracting firm) the bells and whistles went off. Within an hour I was contacted by my manager, the VP, and the company's lawyer, who all told me (with varying degrees of emphases) that they would sue the sh*t out if me if I accepted. I was immediately ordered back to the home office and (apparently) very intense words flew back and forth between executives and directors of both Gigabuck firms.
The next two days were very very ugly and I was so completely terrified at being caught in the middle (and with over $35k in school loan debt back then) that I ended up searching for a new job (and got one the next day after looking). Both sides tried to go into damage control mode but I had already accepted the new offer.
I didn't do anything to raise the offer (except work my tail off and do a good job) and it did colour my perspective for a long time after that. 10 years later it still leaves me with a bad taste when I remember it.
cpeterso
-m
The majority of non-compete clauses, especially for standard IT jobs are completely unenforcable. Most jurisdictions have laws that, contract or not, nobody can prevent you from performing your trade.
In cases where your position is unique enough (read: VP or other important position) where such a clause is applicable, and in any other case, such contract should involve:
Your asking your former employer if you can take the new job you want. If it's in the same field, they can decide to not allow you to take that job. If they DO decide not to let you, and you don't want to contest it, they should have to pay you according to a fair salary to stay out of that job.
Right. But it sounds like your contract wasn't as simple as most of the BS ones in the IT industry that simply say 'whenever you leave here for whatever reason, you cannot work in the IT field for 2 years'.
You suspended them for three months, with prior-agreed compensation... sounds like a relatively fair contract.
That sounds like an invalid contract. Any contract signed under coercion is valid on its face.
Proving coercion may be tough, however...
Jesus was all right but his disciples were thick and ordinary. -John Lennon
In the original post, it was a condition of continued employment. Depending on the state, that could very easily be considered coercion, at will or not.
Jesus was all right but his disciples were thick and ordinary. -John Lennon
Consultants cost a company a lot of money. Several times what they would normally pay for a regular employee so if they really like a consultant its a snap that they would want to hire them away from the consulting firm. So the no-hire policy is to keep consultant from being poached by the client. Which makes sense... otherwise the consultant stable basically becomes an expensive temp to perm service.
Now if you're an employee of a company that's quite different. You can quit and work for someone else. Its your right to practice free trade and hold employment at will. So as a former employee you have the right to practice your trade on your side. For example if I quit my current job and I had a non-complete I probably would get in trouble if I went to work for one of our major clients (because it would appear that I was paid to leave and work for them) or a direct compeditor producting the same product.
Depends. use common sense and remember that they can only forbid you from doing something pretty specific. They can't make you leave the industry.
Dr. Fardook drfardook@evilconspiracy.com
It's just a number, doesn't mean shit.
_______
Scott Jones
Newscast Director / ABC19 WKPT
FC Closer
I've been with several companies technical departments as a Network Admin. Of these companies, only the one that was into technical services required me to sign a non-compete. It was a 3-year dealie with a city-wide radius of thier offices. I was offered no compensation for this and considering some of the recent court rulings, due to the field I'm in, that 3 year contract would have been unenforcable. None of the other companies even mentioned a non-compete clause, even thought I now work in the middle of silicon valley. Most non-compete clauses are just a threat to hold over your head and I seriously doubt that most companies would strictly enforce them.
"An Ye Harm None, Do What Ye Will" Wicca Rede
Make sure you go for not just 100% of your salary current salary during the non-compete timeline (if you have to), but enough extra to keep your insurance current, payments into your retirement going, and everything else.
Very Close.
You are correct about employment-at-will. Absent a contract, you and/or the employer can end the relationship at any time, for any reason (subject to the conditions you stated).
However, the Non-Compete would be a separate, distinguishable contract, and could be enforceable even if verbal. Your conduct (implied acceptance) would cause you to accept their offer on the terms they offered. A simple email says you agree to blah, blah probably is not enough. However, a discussion with a manager wherein you are told that the NC is mandatory, and the company would not hire you without it, might be, even if you accept the offer with your actions or words, but not your signature.
Problems of proof are left as an exercise for the reader :)
They may be hard to enforce, but at least it's something that might give an employee a brief moment of thought before jumping into a competitor's lap.
"That's Tron. He fights for the Users."
I was asked to sign a NDA that would have put me out of commission for 3yrs. I had been working at the company for about 9 months. My condition was that 3yrs salary at my starting rate be put in a trust fund.
I was given leave soon thereafter.
Aah, change is good. -- Rafiki
Yeah, but it ain't easy. -- Simba
Actually I don't believe that 100% pay is conpensation enough. Usually when one leaves a job (A) for another job (B), there is a monatery increase of 10%-15%. Otherwise, why would you leave? I think it would be better to ask for 115% of your pay for a non-compete. Esp. a blanket non-compete. I think that the bottom line is, don't try handling this yourself! Get an Lawyer, that specializes in this area! Otherwise, you *will* get screwed.
Juan
-- Juan
I think the fact that it varies state to state was important for you to add there. Thank you. My previous job's non-compete clause was attrocious. According to it, I couldn't work for any other company designing hosting or selling anything related to the web, and could not work for any company doing anything computer related (no programming, hardware design, or anything). Then luckily a co-orker had his lawyer check out the clause, and in the state (New Hampshire) you apparently can't be forced to follow a non-compete clause after you quit unless the company is willing to continue paying you your salary for the duration of it's specified time.
I don't remember the citation, but there is an exception in California law for persons who are
shareholders.
In short, if you start a company, and it's acquired by a California company, then it's legal in California for them to ask for a non-compete.
This happened when my partners and I sold a firm. I can understand the rationale, but I think it's important that people who read the law above realize it's not 100% applicable.
could not use knowledge that he gained at the company for 2 years
What kind of idiocy is that? Does that mean that, If during his time that the company, that company paid for a person to get training to be better able to do his job. Lets say that they paid for him to learn a whole bunch of stuff about WAN administration. Does this mean that if he ever left the company, he would never be allowed to configure a router again, or he would be legally required to forget all of his knowledge when he left?
I may be getting that wrong, but it seems extremely absurd to me.
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Opportunities multiply as they are seized. --Sun-Tzu
You can protect yourself from those after the fact surprises by adding your own clause to the initial employment agreement. Words to the effect that they have to give you a year's salary if they even show you a non-compete agreement.
This is certainly hardball and only something to try if you've got multiple offers.
At the end of the day, you most certianly are being forced to sign the contract. The entire point of labour law is to prevent employers from abusing the imbalance of power inherent in our system.
Cheers,
Rick Kirkland
Competition? with what? MS doesn't offer a service like that... IMO it's a pretty weak charge.
>Micro$oft sued the guy ( and the other Micro$ofties ) and they had to fire themselfs from Crossgain.
No, MS threatened to sue and offered them a deal requiring them to use MS software instead of Sun and Oracle stuff. They decided the legal battle wasn't worth the time and money, but they didn't want to be forced to use MS software, so they fired themselves instead. Thus, giving them the freedom to choose their own software... pretty evil shenanigans from MS IMO.
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I hope you're not pretending to be evil while secretly being good. That would be dishonest.
I repeat MS doesn't offer a service like that... they've said they will be, but how can you compete with something that doesn't exist yet. (OK, so IANAL, but it seems pretty dumb)>
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I hope you're not pretending to be evil while secretly being good. That would be dishonest.
Ok, you went to court, and got nailed by your old company. Now what?
Can they force you to quit your job? Someone said no. Do you just pay a fine? How much?
Jail?
Later,
ErikZ
Democrats or Republicans. They are both taking us to the same place and they are not afraid of us anymore.
I believe the "duress" noted was related to the very short time period involved. Being asked to read and understand an employment contract in one day, without a chance to consult a lawyer may be unreasonable duress.
I was in a similar situation when a company I worked for was bought out by Quark, (Notoriously bad company to work for, btw.) who came in an demanded we sign an employment contract that day.
The most appalling part that contract is that there was a clause saying 'I agree that I have had adequate time to consider the contract'!! (4 hours, yeah right.) We all thought that was bunk, so ignored their deadline, consulted attornies and such. And signed later after due consideration.
While there is probably no specific time frame, if my employer told me to sign a contract in the next 10 minutes or I would be fired, I would conider that duress, and hope that it would be voidable in court. Even a day for a major change is pretty short, especially since the company would have spent much more time creating it.
rbb
p.s. If a company violates a Criminal Law, who gets sent to Jail? Does a company have 1st amendment rights, or does it only apply to real people? If a company kills someone, can we give the company the Death Penalty?
I'm not so sure about that. I know this is truly pathetic, but I remember when the Charlie's Angels show was on they talked about Farrah Fawcett's contract. She was signed up for three years, and wanted to leave, and somehow the studio didn't have a signed contract from her. However, they had been paying her according to the terms of the contract, and so the studio sued her for breach of contract. The studio won, and she had to come back and do guest appearances on the show. I'm not claiming this is relevant, but it's a clear case of a situation where there was no signed contract and yet a judge ruled there was a breach. All the posters who talked about tricking HR might think twice about that as a legal tactic.
Walt
So the truth is and? That's not very insightful!
--
I agree in that they are hard to enforce. i have signed a non-compete agreement, but i also work in a smaller town. can they come after you if you go out of state?
Fortunately, here in California, non-competes are virtually unenforceable. The California court's standing is you can not be prevented from making a living in your chosen profession (trade secrets are a different matter).
In other states, sadly enough, the courts have prevented professionals from working for so long that they will become unemployable by the time the non-compete period expires.
-- Will program for bandwidth
Not necessarily. Many companies have contracts which:
1) hold you to a broad non-compete for a long period
2) remove all of your rights to sue them, and limit their liability to any unpaid wages (in the event that the first clause is struck as not enforceable)
3) require you to pay their legal costs in any lawsuits arising out of the contract (ie, you pay them to sue you)
4) remove any time limitation on their ability to sue you
And I've seen various other horrible clauses as well. I refuse to sign any such agreements. In most cases, companies will agree to reasonable modifications.
-- Two men say they're Jesus. One of them must be wrong. - Dire Straits
Don't non-compete clauses apply if you quit the company? Fine. stop working (don't quit, just stop doing work). Eventually they will fire you, which should void the non-compete clause.
Yes? No?
As far as compensation goes, I say a valid compensation would be 100% of your salary at termination for the duration of the non-compete clause.
-- You can't idiot-proof anything, because they're always coming out with better idiots.
Yeah, but then you'd have to live in New Jersey and work for Dendrite. I don't see either of those things as very attractive. But maybe that's just because I worked in the call center there. Almost anything is better than working in a call center.
_____________
I don't want free as in beer. I just want free beer.
In seems to me that in all fairness that if a company wants a non-compete they should pay for it - say a retainer of 30% of previous salary while it's in force - you quit company X and they don't want you to work for company Y - you don't so long as they pay you for it - they stop paying you get to work where ever you want ....
After following this link I came across the following amazing non-sequitor:
16603. Every person who, as a condition to a sale or consignment of
any magazine, book, or other publication requires that the purchaser
or consignee purchase or receive for sale any horror comic book, is
guilty of a misdemeanor, punishable by imprisonment in the county
jail not exceeding six months, or by fine not exceeding one thousand
dollars ($1,000), or by both.
This section is not intended to prohibit an agreement requiring a
person to purchase or accept on consignment a minimum number of
copies of a single edition or issue of a magazine or of a particular
book or other particular publication.
As used in this section "person" includes a corporation,
partnership, or other association.
As used in this section "horror comic book" means any book or
booklet in which an account of the commission or attempted commission
of the crime of arson, assault with caustic chemicals, assault with
a deadly weapon, burglary, kidnapping, mayhem, murder, rape, robbery,
theft, or voluntary manslaughter is set forth by means of a series
of five or more drawings or photographs in sequence, which are
accompanied by either narrative writing or words represented as
spoken by a pictured character, whether such narrative words appear
in balloons, captions or on or immediately adjacent to the photograph
or drawing.
I was presented with one a few years ago (the company was Dendrite) that provided for a 50% salary for the life of the non-compete (2 years, I think). It was worded something like "I agree that 50% base pay during the non-compete clause adequately compensates for the hardship of the non-compete clause..." (probably to avoid a court challenge over whether the clause was fair, prevented me from making a living, etc.)
"I mean seriously -- can a computer consulting company (for example) force you not to work in the industry simply because you used to work for them? Or perhaps you work for a competitor that does business with the same clients?"
It depends on where you are. If you are in a right to work state (Most commonwealths are.) non-compete clauses usually will not hold up. I live/work in Virginia, when non-competes are known for being blasted away by conservative judges who will protect a person's right to work where he chooses.
In more liberal states, non-competes are often enforced by the judges there, who tend to side with the corporations.
Except I've seen non-competes that specify you have to cover court costs, which can be pretty bad.
-beme
-beme
1971
Basically, if you're 1) dumb enough to sign a non-compete contract, and 2) crazy enough to actually abide by it, they don't have to compensate you, they've already bent you over and greased your ass.
But really... what can your EX-company do? Get a court order saying you have to quit your current job or else? Have any of you ever met someone who was forced out of a job because of a previous employers contract?
If you are lucky, you might get 2-weeks severance.
I do not deploy Linux. Ever.
He was working in IT for a publically held firm, had been there for years and now has extensive experience in technology related to a particular financial field.
He accepted a job with a company that, while not exactly a direct competitor, was physically located in the same region, and also related to finance. He gave notice, and started at the new firm.
A few weeks later, he was unemployed.
His former employer basically forced his new company to terminate him, based on his non-compete. The real motive was revenge for leaving the company, and his solution to the problem was to find a new job, and this time not tell anybody at his original employer the name or industry of the new employer.
The moral of the story is, make a clean break with your old employer- what they don't know can't be used to sue you.
I do not deploy Linux. Ever.
What if the employer doesn't pay?
And don't forget:
You don't have to get a lawyer or go to court. Just go the nearest labor board ("Department of Industrial Relations") office and fill out a form.
Non-competing clauses are a tradition in contract law. The classic case (IIRC) invloves a car mechanic being constrained from starting up an alternative mechanic shop (or working for one) within X miles of the business that he had just sold to someone. Now the extension to this is that it applies to employment contracts, this extension has been largely accepted by many jurisdictions.
HOWEVER, there is a principle that a restraint of trade, whilst something into which someone is allowed to enter, is something that will always be construed very narrowly. There is a recognition (and it is probably still growing) that there is an emerging (if not emerged) "right" to earn a living. The kind of covenants that formed the basis for a restraint of trade clauses have their genesis in property law and there the narrow construction of these clauses reflects the reluctance of the law to "fetter" the free use of property by the property owners (oh the irony). This "right" to earn a living is a necessary concession to the changing reality that for the vast majority of persons, their only true property is their capacity to earn a living and so the emergence of a "right" to earn a living is similarly restricting the way in which anti-compete clauses are construed.
So, yes the clauses are legal (normally). But they need to be limited. Traditionally this limitation was either geographic or industry (within X miles or car mechanic vs tractor fixer) the difficulty in determining "restriction" in the context of the IT industry shows once again that the fundamentals of 18th century law must be carefully assessed in the light of the modern world lestthe unmighty get screwed.
"The first thing to do when you find yourself in a hole is stop digging."
Actually, I am rather seeing an increase in the abuse of metamoderating. I lost 3 karma the last week with only 10 Moderator points being used on fair moderations.
-
It seems that anything other than marking obviously karmawhoring jokes with a +1 Funny will lose you your hard-earned karma...
Well, I learned by lesson and put myself to "not willing to moderate".
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If you can get a company to agree to that, you must have some special skill. Non compete's put you on the defense from day one at a new company and chances are the company doesn't care. Fortunately, they are extremely hard to enforce (which is what every HR person says), but at the same time, if they are so hard to enforce, why bother with them. I wrangled with my current employer for 6 months refusing to sign unless they gave me a contract or a severance package because their non-compete was so vague it included the entire industry. In the end, I had them reword the document to specifically list their 'direct' competitors, which could not change without my approval, and remove any mention of working with corporate partners.
"Where is my mind?"
(Anyone know of any tech unions?)
Free Techno/Jazz/DNB/MI Music by guys obsessed with monkeys!
YOU might find it dispicable, but "ethics" is not in the business lexicon. A business wouldn't think twice about ruining you completley.
We have to face the fact that we're not powerfull enuf or valuable enuf on our own to protect ourselves.
Free Techno/Jazz/DNB/MI Music by guys obsessed with monkeys!
I know for a fact you can refuse to sign a noncompelet in California with no repercusions (sort of). If they fire you they are breaking the law. I just read the article in the SF Cronicle and can't find the article online but basically there is a statue that says that an employer can't prevent a employee from gaining employment after he or she has quit. As in "for any reason". The guy was fired, sued and won. Check you local laws but in california it's only binding if you sign it (and maybe not even then).
Do you ever feel like there are people watching you? You're not alone.
In regards to non-competition clauses there's a very good reason for a company having them. Say you work at a real-estate company (X) handling several large corporate accounts. You decide to leave company X. Since you are the prime contact for Company's A & B, you can call them up and say "Hey, I've left X, but I'm moving to Y and would love to work with you there." Thus A&B leave X and they lose millions of dollars. Now a lot of times a company will lease restrictive clause that says "for a period of 18 months after leaving our firm you can't talk to any of your old clients". This is actually reasonable and quite fair.
Another good example of a no-compete clause was the one Ross Perot signed when EDS removed him from the board. He was given something like an $8 million severance package and told he could not compete for a period of 2 years (I think). After those two years were up, he started Perot Systems and now vies with EDS for many of the same clients.
When technology comes into play it gets a little more tricky. If you work at company X & then move to Y you can actually use knowledge of the product from company X to build a competing product at Y. This can't really be covered by normal patent protection which is why the no-compete clauses have come into play. A broad no-compete clause is ridiculous, especially one that covers the entire IT industry. One that says you can't work at a streaming media player company for 12 months after leaving is not. Courts will uphold these although I'm not sure who would get sued if you violate it. It's possible the new company would pay damages but I'm not sure.
Mordred
Personally, I would push for 3 months at 150%-200% pay. The Tech industry moves along quickly and that kind of bump in the road can be harsh.
It all depends on your skills and industry history, for sure - but it all comes down to knowing that everything is negotiable and you are not going to get the best deal be sitting back and hoping they are nice to you. Be direct, know your base assets (to their company) and push for what you value as a comparable compensation to their non-comp. contract.
Evan - needs to hit preview before submitting
This worked for me at both my previous and present employers. The HR person asked if I wanted to read the contract over. Say "Yes", then take it back to your desk, and file it away in the back of your file cabinet.
If the HR person bugs you, say something like, "Oh, didn't I get that back to you already?"
It sounds sketchy, but it's worked for me twice! Don't surrender your right to work on your own projects, just because of corporate paranoia.
So I guess anyone who's worked at Microsoft and written a web page or used a web browser after they left is guilty....
Seems to me that Microsoft thinks they own the Internet. Sometimes I wish DARPA had retained control and made Microsoft pay a licensing fee to develop software for their network...
The society for a thought-free internet welcomes you.
Molog
So Linus, what are we doing tonight?
So Linus, what are we going to do tonight?
The same thing we do every night Tux. Try to take over the world!
Yes; Lawsuits are funny like that.
It's actually very simple: You sign on with Company XYZ42, get a shitload of free training and insider knowledge of their operations, then 6 months later jump ship to start your own business or join up somewhere else for a much higher salary.
Companies don't want that, so they make new hires sign co-compete contracts. You don't like that, so you negotiate a good contract, or work for someplace else.
How's that for pursuing happiness?!?
Karma: Bored. (Thinking about resurrecting the "Anyone else is an imposter" joke.)
I've seen too many people get their rocks off by telling their boss to piss off, only to find that their new job wasn't all it was cracked up to be.
Now, I'm certainly one of those who is very wary of going back whence you came, but it's sure nice to have the option.
--
Sorry. Guess I haven't been keeping up with changes in Texas law. I don't live there, and the stories I heard were from before this.
Actually, this is one of the major reasons why liberal states do so well in the national economy. In conservative states like Texas, the law is set up to protect entrenched corporate interests. Not only is a non-compete strongly enforcable, but even things you invent on your own time with your own money is considered property of your employer. In the long run this discourages innovation - which hurts their economy far more than liberal states' high taxes.
Basic contract law - if you didn't sign it, it's not really a contract (a few exceptions exist but none of them seem relevant here)
On the other hand, you will have signed some other things as part of your contract including non-disclosure agreements and documents handing over to your employer all "rights and benefits of inventions or patentable concepts that you may create during the course of your employment that are directly arising from your participation in this industry as a member of this company" or something of that ilk.
In legal terms, you have a "duty of loyalty" to your employer that is an implicit part of any employment contract (whether written or not) and you can't use knowledge gained about Oracle to directly damage Oracle in another company.
If sufficient time has passed (usually a year unless you were a very senior individual in the company), then the court would probably rule that any knowledge you may have had will have passed it's useful life and you therefore cannot be guilty of anything.
Aside from whatever the law says, the court looks at the facts of the case, and will apply a rule called "Res ipsa loquitur" (I think - this is old knowledge) which means "the facts speak for themselves", if the facts really do speak for themselves and you really have screwed your ex-employer using inside knowledge, then they'll award your ex-employer damages accordingly.
In any case where there's a doubt in your mind, it's probably worth the $100 to get legal advice before making a decision.
Salocin.com
A non-competition clause in a contract is enforceable so long as it does not fall under the definitions of a bunch of other laws, among them the "Unfair contract terms act", and a few others more specifically dealing with employment law.
A non-competition clause must be
- Limited and reasonable in time - it cannot exceed a period that the court deems "reasonable"
- Limited and reasonable in scope - this is complex and I'll cover it below
- Fair - you can't cripple a person's future career unless the compensation is there, kind of like a waiver to the usual consideration laws - here consideration has to be both present AND sufficient, whereas usually it only has to be present.
In cases that have been tried, what usually makes the clause non-enforceable is the scope argument. The scope is a kind of function of the type of industry, the role the person had in their last company, the size and presence of that company and the number or market size of the markets in which the individual is prohibited from exercising those skills.
For example, if you were chief technology officer of a tiny development company that worked off a single product, they can't enforce a clause preventing you from working in the IT implementation industry in an entire country, because the broadness of the exclusion is far greater than the broadness of the role given up.
This rule seems to be constantly open to re-interpretation, but in almost all cases the court leans towards individual rights rather than those of the company. My guess is that this is because the companies rarely need the clause to protect themselves - if they have proprietary technology, then their copyrights and patents ought to protect them, and they shouldn't need specific individuals, and the loss of those individuals should not be a threat. Where the courts back the companies up is where the leaver takes with them a huge list of contacts that were developed using the prior employer's resources and services, or where the leaver takes with them a knowledge of the industry that is significantly ahead of it's time because the company they joined gave it to them - then an exclusion clause for that specific area will be enforced. Of course it can only be enforced for a few months because technology moves on, and it can only be enforced over very specific and narrowly-defined areas otherwise it's not considered fair.
Writing clauses like this for key personnel is very difficult and it is done for two reasons. Firstly and most usually, they are to scare people into staying. Secondly and more rarely, they are there to protect what is seen as an "excellence in thinking" in a specific area of expertise. For example, the head of technology development for Oracle probably has some clauses about working on web-enabled enterprise database delivery systems or some such junk because Oracle will have stuff in pre-patent conceptual phases of development that they want to protect, that is insufficiently defined to be awarded a patent or copyright.
Salocin.com
From the point of view of contract law, "sign or be fired" is an offer of valuable consideration (continued employment) in exchange for valuable consideration to the other party (non-competition with them). For duress to exist, the threatened action must be *unlawful* (and the threat is called extortion). Since termination is perfectly lawful -- in lieu of preexisting contract to the contrary -- there is no case for duress.
In fact, by arguing how badly you need continued employment, and how badly you would be hurt by losing it, you are strengthening the employer's case for its value, and thus for the enforceability of the contract.
-- ;-)
Kuro5hin.org: where the good times never end.
"All inventions which I conceive or develop during my employment, whether alone or jointly with others ans whether during my working hours or otherwise, whic relates to the business or interests of Company or any business or other company in which Company has an interest sall be Company's exclusive property".
On the other hand, I worked for SAC/STRATCOM. Their policy was much simpler: "If you plan on leaving the country in the next five years or you meet someone you find out is from any foriegn country, let us know. We'll want to interview you."
-----
No Zen is good zen
Remember, a non-compete is a contract, and like all contracts it requires consideration. A promised pay raise in exchange for signing the non-compete may not be sufficient consideration if it the raise is really given based on performance. Similarly, a promise of continued employment may be insufficient consideration if the non-compete is presented as a "take-it-or-leave-it" matter, rather than negotiated by the parties.
In California non-compete agreements are generally not enforceable at all. This may be one of the reasons Silicon Valley is so successful; there's no bar to leaving to start up your own company.
Problem is, you need to specifically ask for the non-compete before accepting the job (and leaving your previous job).
In the past, I've been made an offer from a company and accepted. Then on my first day they hand me this form to sign, and if I don't sign it they will let me go. At that point my options are limited.
I've also been in a situation where my company came up with a new non-compete and said "we're not holding a gun to your head, but if you don't sign this we won't be employing you anymore.". Again, not much choice.
The only defense is, upon receiving an offer, to ask for a copy of the employment agreement. Then use that to negotiate or base your decision to work. Don't let them spring it on you once you've already burned your bridges.
Ralph
Why not specify in the contract that if you are ever fired or quit, the contract is void? The contract contains the non-compete clause would then make the non-compete clause invalid, wouldn't it ?
From the point of view of contract law, "sign or be fired" is an offer of valuable consideration (continued employment) in exchange for valuable consideration to the other party (non-competition with them).
Bzzzt, sorry. Unless the non-compete guarantees your employment for a specified period of time, there is no consideration. Sign or be fired is not consideration, because you could sign the contract and then still be fired, unless the contract specifically guarantees your employment.
ok then your [sic] infringing on my copyright! Could you as [sic] me next time before STEALING my comments for your own?
Oh yeah, IANAL, so use this advice at your own peril.
If they're still paying you, you can sit at home and do whatever you want with your time, I guess as long as your not making money off it or helping anybody else make money. This sounds to me like a good time to contribute to some open source projects, do some good to the community, keep your skills up, and get paid at the same time!
He joined Crossgain (a startup) in September because "he saw it as a key player in the next generation of Internet computing"
He's contract with Micro$oft contained noncompete restrictions valid for 1 year.
Crossgain is a startup that aims to "create a service that runs a company's big software programs over the Web" (in competition with "we know who").
Besides him also a couple of ex-Micro$ofties went to Crossgain.
Micro$oft sued the guy ( and the other Micro$ofties ) and they had to fire themselfs from Crossgain.
He and a couple of his collegues tried to pull a fast one and failed - so what!!!
Disclaimer: Even though this involves Micro$oft, which is the devil incarnated, i am refraining myself from being parcial against MS.
I don't think non-compete could hold up in court...isn't it a violation of your right to the pursuit of happiness?
--
Wooden armaments to battle your imaginary foes!
Here's what I recommend... they can have their non-compete - but in exchange for x months severance. In a pinch you can make it optional ... eg. they can either enforce the non-compete and pay the serverance - or - skip the severance and set you free.
www.hiredinsight.com
Absolutley!
I've always asked to see whatever contracts they want me to sign as well as the entire employee manual before I accept a job. I'm surprised how few people must ask for this because the HR departments always act like I'm from the moon or something -- but they always cooperate.
At this point you can negotiate changes in the contract & stuff if you need to.
As far as an existing employer trying to push a new contract on me -- I'd be gone before they knew what hit them. We're in too much demand to be treated like that!
The only compensation that would be worth signing for would be if you were going to get paid over 100% of your salary for the entire length of the time you couldn't compete.
In this industry we are often asked to sign confidentiality agreements, which are entirely different. We simply cannot divulge another companies secrets. That makes sense. But agreeing to not compete in the computer industry is ridiculous. Usually it's common in other industries because they are customer oriented (ie. most banks and insurance companies offer pretty much the same services, it's mainly a game of getting the customer base) and they don't want one person walking away with the customer base because they know the customers well.
So let's do ourselves a big collective favor and refuse to sign any non-compete agreements!
so i just signed it "Phillip McCollen" with my left hand and gave it back to him (yes, i'm right handed, and no, I'm not named "fill up my colen").
he walked away satisfied.
and i walked away smiling.
although the non-compete issue is a serious one, try this method before getting into it for real...
If she floats, she's a witch.
At a recent job (I won't name the company), I asked on the way in about the agreement. They didn't have one at the time, fine. Two months later, they come in with a heavy-duty con-compete contract (with no compensation provisions in it, either!) and told us "sign it or you're fired".
I walked. There are enough companies looking for programmers that I didn't even lose sleep over it. I wasn't the only one, either. Eventually, maybe corporate bosses will get a Clue(tm) that doing that serves precisely to drive out the people they're trying to keep....
As someone posted above, it depends on the laws of the state you're working in whether or not it's legal (some states, like Texas, are "employment at-will" - translation, no reason is ever required by law for letting someone go). In practice, it may be somewhat shaky legal ground, but your safest bet (and surest way to stay out of court, whether or not you'd win) is just to find another job. It's also less stressful; if that's management's clue level, do you really *want* to see what they do next?
Interestingly, I never provide salary history, and it's never stopped me from getting hired yet. Out of politeness, if asked about it, I'll give a range ("mid-whatevers" or "low-whatever") from wherever I previously worked, but since I switch between contract and permanent work anyway, it's just not always relevant.
And yes, for reference, I'm in my 20s too. Sure there are plenty of inflexible, our-way-or-else employers out there - but there are also more clueful shops too. Keep looking....
- I got the want-ads out and some prospects in order and then
- I figured out what I could potentially make from the theoritical other clients in the time period specified in the addendum and then
- I politely told them to piss off and the reasons why. I offered that they could tighten up their confidentiality clause all they wanted but that all my job contacts were in this sector and I couldn't let them muck with that.
They withdrew the non-compete clause so I didn't have to counter with a huge salary increase. Keep in mind that they gain by you signing it and have nothing to loose by asking you to but they might be fine with you not signing it.Hmmmm.
I just started work with a company about a month ago and just about can't stand this place already. I signed a non-compete when I started, but is it still enforceable if you leave or are fired after only 30-180 days?
Later, klokwerks. A sig wouldn't do my ego any good.
Why would anyone take a job without a contract in this day and age? It is insane. I would not quit my current job unless I have a written contract and a signing bonus to boot, even if it was a much higher paying job. The risks are too great.
If a NC clause was not in the contract, then they cannot void the contract just because you don't sign the NC that is secondary to the original contract. And if they do decide to let you go, you have a signed contract (hopefully with a great escape clause) that they have to honor.
Companies are out to screw you, you just have to be smarter than they are.
Agent K: A *person* is smart. People are dumb, stupid, panicky animals, and you know it.
Even two weeks is an escape clause. I won't work for anyone that doesn't provide me with an escape clause, executive or not. It doesn't hurt to ask for more.
Protect yourself at all times. Know exactly what to expect (to the degree that is possible). Contracts are just another tool one should learn to use.
Agent K: A *person* is smart. People are dumb, stupid, panicky animals, and you know it.
my reaction is not printable in a family oriented medium.
There's a saying in techdom about Microsoft: Don't moon the giant. Crossgain mooned Microsoft every which way. First, the ex-Microsofties poached some of their former colleagues to join them at the startup. Then they raised $10 million from investors, including The Barksdale Group, a venture firm run by Microsoft's chief nemesis at the antitrust trial, former Netscape Communications Corp. (AOL) CEO James Barksdale. A few months later, Crossgain named Mitchell Kertzman, an outspoken critic of Microsoft's business practices, a director. Kertzman is CEO of Liberate Technologies (LBRT), an interactive-TV software maker that competes fiercely with Microsoft interactive-TV technology
The last straw was Crossgain's decision to base its technology on non-Microsoft software. Instead of using such Microsoft products as the Windows 2000 operating system and SQL Server 2000 database package to develop its service, Crossgain opted for software made by rivals. ''It doesn't look very good for Microsoft if a company run by its former vice-president of developer relations is using software made by Oracle,'' says a former Microsoft executive.
With a potential lawsuit looming, Microsoft offered a deal, according to Crossgain and Microsoft. If Crossgain committed to building its service with Microsoft products, the company wouldn't pursue the noncompete claims. Crossgain sources say Microsoft specifically wanted to preclude the company from using Oracle database software. Microsoft sources deny that. Switching to Microsoft technologies meant huge delays and the loss of months of work for Crossgain, which hopes to launch its first service in March. But the deal also meant avoiding months, or perhaps years, of litigation with one of the wealthiest companies in the world. Crossgain execs thought they could win the litigation, but the time and expense to do it would be a huge drain.
The system is obviously open to abuse, and I am going to have to think long and hard on how best to sort this out.
"It is a greater offense to steal men's labor, than their clothes"
When I showed up for my first day at one company, I was presented with a non-compete/intellectual property agreement. I was told that my employment was conditional on my acceptance of the terms of the document and my signature. I never signed the document, but I continued to work there for months.
How did I accomplish this remarkable feat? I reasoned thus: Essentially all non-compete agreements are worded in ways that are grossly unfair to the employee. Accepting the agreement a company puts under your nose as written is roughly equivalent to accepting the first price quoted to you by a street merchant in a middle-east bazaar.
Further, I reasoned, lawyers are like ferrets; they have short attention spans and more teeth than is strictly necessary. So I refused the agreement based upon a few clauses I found objectionable (it's not hard to find something to bitch about in one of these documents). The company sent the thing to their lawyer to have him review it in light of the objections I had made. He made some changes. I found more things to whinge about in the new document. I sent it back.
We played this game for about two weeks until (as ferrets will) he wandered off and found a new toy to chew on.
Problem solved.
--
I *invented* pants!
I am not a lawyer, but know of many non-compete disputes which have arisin over the years involving my company in one way or another (electronic components distribution industry, but none recently). There are a couple things that will almost guarantee an NC not hold up in court, and the example above is a perfect case of one of them. If you are compelled to sign under penalty of job loss or compensation loss, it will probably not stand. If the individual in the story had to sign when he was hired, that is one thing. The fact that he had been there for a story and was threatened with termination year is a completely different story, and something that usually results in the judge throwing out the NC. If you do leave and go somewhere else and his old company files a charge, the new one definately has a case to get it overturned.
The other case is that the NC unfairly prevents the signor to earn a fair living. For example, if you go to school to be an EE, become one and work as one, you are going to gain practical knowledge that you would use if you ever left the job. Barring someone for 2 years from using this knowledge and basically from working as an EE, will get the NC negated in court. Its not like you can just get another job with the comperable compensation. You cannot be barred from earning a living if you have a specialized skill.
Again, I am not a lawyer, but I know first-hand cases that have been thrown out on both counts (Im sorry for those of you who demand specific case evidence, but for confidentiality reasons, neither names nor companies will be named). However, the original poster gave the best advice on how to handle the situation, have a lawyer check over anything like that that you are asked to sign. Whatever you do, do not let them force you into doing something "by the end of the day" -- if you werent important enough, they wouldnt ask you to sign one in the first place, so they will probably let you have a day or two to get advise. If not, take what you know and go somewhere else.
If you feel you were unfairly compelled to sign, dont worry, there are avenues you can take.
The ivory tower has never had to reach so h
Yeah, me too. Or if they wanted a guarantee that I wasn't working for anybody else, I'd tell them to finance my [Antartica|Ellesmere Island|Himalaya|somewhere demanding) expedition.... :-) I wonder if my knowledge would be worth that much...?
Employee of Inrupt, Project Release Manager and Community Manager for Solid
I agree. I don't sign non-competes. It's that simple
They asked me to sign a contract a bit like this (but with completely unrelated clauses) in my previous job. I said "sure", never signed it. They asked me again, said I had it at home, that I would bring it back. I've never signed it.
I did the same thing for almost two years. Every three or four months someone would review the file of non-compete agreements and realize that I and a couple of others hadn't signed. We'd stall, they'd forget, and life went on. About 18 months into this they started to get more insistent and I changed my story, and said that I was having a lawyer review it (that wasn't a lie; I was having a lawyer friend take a look -- slowly). By the time that story got old I was ready to leave the company anyway. When they realized I was leaving and had never signed the agreement, they threatened to withhold my last paycheck. I had (purely by accident) given notice the day after payday, so I just told them that if they weren't going to pay me anyway, I'd just leave right then, and packed my stuff and walked out.
Note to ACs: I usually delete AC replies without reading them. If you want to talk to me, log in.
Threaten to move 'zig'. But seriously, do apply for work elsewhere, but under a pseudonym.
:)
-"Aren't you Larry Ellison of ex-Oracle fame ?"
-"Ahem *cough* of course not. I'm Gary Ellison, and I'm better than that Oracle guy."
Heck.. it's so friggin' stupid it might be worth a try
-Billco, Fnarg.com
-- Shady(IANAL)G
Nerd Rock In Progress
Back when I worked in broadcasting, the industry thought they could get away with no-competes for everything. Right down to the minimum-wage people they had answering phones. As my attorney told me, if you live in a right-to-work state, the only way a no-compete clause is valid is if there's quid pro quo. That is, they buy from you the work time that you'd spend at another employer. If they chose to let you spend that time watching Jerry Springer or flipping burgers, that's up to them. But they have to *purchase* that ability. Generally, I've seen negotiated rates from 100% of salary to what I negotiated in my no-compete which was they make up the difference if my non-broadcasting job was paying less than what I was making in the industry. So, when the company was bought out, I found myself a posh job in the bookstore at a community college. I was paid a paltry sum of $9 an hour for 5 hours per day and due to (the all to common) ineptitude of the broadcast outfit, they made up the difference for my old 8 hour-day job. Best two years I've ever spent!
I think that it really depends on your skill level, and what you've done for the company. If you have developed a major part of a company's product, then certainly you are far more valuable to the company, and to others, and therefore should be getting at least 200% if they're not letting you work for another company for X months. OTOH, if you are just a peon, then they might as well let you go, and you're lucky to get 100% if they are even holding you back from working at another company. I think that each case needs to be handled on an individual basis, and that we cannot just slap a sticker on all of the contracts that say "X% for Y months" My $.02
If the problem is that you might steal existing clients or use existing technology at a competitor, I don't see why a non-compete would be necessary at all. This kind of stuff should easily be covered by a standard non-disclosure agreement, which simply says you can't use information proprietary to the company you used to work for at any other companies you might work for in the future. But it doesn't put a blanket restriction on your ability to get a job...
"Biped! Good cranial development. Evidently considerable human ancestry."
And I can't even leave the Army whenever I choose. They said that if I was "absent without leave," the MP's might shoot me on sight.
From all the books I've read about getting ahead in your job, it seems the best way to advance is to hop from job to job every five years. Now, how am I supposed to do that? Private Phil McCrakkin
But I never said me and my views were perfect.
--- I used to moderate, then I read the -1 articles and decided having to filter through them was not worth it.
or some other method of compensation but that's an aside. The fact remains that if I am bound by a contract I expect to be compensated for it in some way/shape/form. Why shouldn't it extend to an NDA, especially if a No-Compete clause is thrown in. Anytime my obligations are dictated by something I was asked to sign I had better be able to realize a gain of some sort. A contract that benefits only one side is a raw deal.
"Me Ted"
BOSTON SUCKS!
I've been a contractor for years, and I just ignore them. Just don't tell your company where you're going to work next when you leave. It's very simple. They know nothing, so there's nothing to worry about.
Unfortunately, many companies are less interested in maintaining the integrity of their intellectual property and more interested in preventing workers from leaving. A job should not be a prison.
LedgerSMB: Open source Accounting/ERP
In order for a contract to be binding, both parties must give something of value (known as "consideration"). That's why you often see "in consideration of the sum of one dollar" when someone wants to attach legal strings to a gift. In the example above, the employer was not offering anything of value. Saying "I will kill your dog if you do not sign this" does not qualify as consideration and that is analogous to the situation described above where the employee was threatened with termination.
That being said, I am not a lawyer and have very little training in business law. Should you find yourself faced with a situation like the one described above, seek the advice of legal counsel licensed to practice law in your locality.
In fact, by arguing how badly you need continued employment, and how badly you would be hurt by losing it, you are strengthening the employer's case for its value, and thus for the enforceability of the contract.
I'll be blunt: You don't know what you are talking about.
See this URL which contains a summary of a business law textbook:
http://lawschool.lexis.com/emanuel/contracts/
From the above reference:
The defense of duress is available if [a] party can show that he was unfairly coerced into entering into the contract, or into modifying it. Duress consists of "any wrongful act or threat which overcomes the free will of a party."
Note that it is "wrongful act or threat". There is no requirement that the threatened action be "unlawful." Have you ever heard of "wrongful termination"? That would be a good description of what happens when you are fired for not agreeing to sign a non-compete agreement for your existing employer.
Modification: This general rule means that if parties to an existing contract agree to modify the contract for the sole benefit for one of them, the modification will usually be unenforceable at common law, for lack of consideration.
A non-compete agreement is a modification to an existing employment contract that benefits only one party and there has been no consideration given.
By your standards, an employer could offer you a job and then, after you had quit your previous job and moved across the country, present any document that he wanted and force you to sign it under threat of being fired. Agree to a pay cut or be fired. Sign this agreement to bathe my dog every week or be fired. Sign this agreement to work 80 hours per week or be fired. The employer has to act in good faith. He cannot reduce the value of the compensation unilaterally -- which an ex-post-facto non-compete clause does.
By the way, you are talking about people's livelihoods in this thread, so don't make up bull***t.
To the best of my knowledge, none of the examples that I gave are illegal. There is very little protection for employees in the U.S. and there will be even less under a Republican-controlled federal government.
Not if you don't have a contract
If you are working there, you have a contract, whether it is a formal, written document or a meeting of the minds at the time that you accepted employment. The lack of a written document does not mean that the employer can, at will, force you to sign contractually binding documents under threat of termination.
That the non-compete clause is a maximum of one month without compensation, or a maximum of one year on a compensation equal to your salary for the selected non-compete period.
--
Software is not supposed to be about how to work around a useability issue. - Ken Barber
I worked for a company (landscaping) who didn't tell you that they wanted you to sign one of these after you quit. Of course they told you after you quit.
Actually my mother worked there also. She had 20 years experience in the field and they were worried that she would discuss the 'business' with other companies or use their info to start her own.
And they were very persistant that she signed this contract. The sad thing is that the customers of the company would've rather just had her work for them, and not the landscaping company. They sucked!
These contracts are a sign of a crappy business. If they did that good, they wouldn't need this.
Get your Unix fortune now!
Put it on your resume that you will not sign such documents, and will not be held accountable for not signing such documents. Make the company sign a form with their signature that says they shall not present such a document at the time of employment. If they do present one, then the document they signed will say you can in no way be held accountable for not signing such a document.
Then their non-compete form will be invalid in court.
M$ stock dropped in 1/2 since last year. If you are a MCSE, you will be broke.
My fiancee worked in a cellphone shop last year and her contract had a pretty broad non-compete clause in it. If she left, she wasn't allowed "induce" any of her clients OR HER COLLEAGUES to leave also. So technically, by telling her boss she left because she hated the work environment, she broke the contract...
Non-compete applies to suspension as well as termination. The woman who was fired for reading email had a continuing non-compete order for the next six months.
:P
If you're wondering about the man who returned, I had outsourced a group to ensure that access to the internet only included some forty or so servers, thus, making the need for him to find the transplanted ADC less necessary. Other than the that, he was one of the best micro-systems engineers I have known, and we all have our hang ups.
Now, thoush, let me ask you, would you seriously want a woman working for a competitor who may have accessed Linus-knows-what working for your competitor? Emails, when I left, were encrypted for level and could only be open by the destination computer. Sad to say it, but the hubs were BSD.
Hmm, maybe that's the source of the porn problems...BSD/BDSM, yeah, I could see that.
As an official troll, I am now going to whine and harrass. X Windows is laggy and the new GNOME splash screen scares me.
That's pretty much all I can whine about, really. Well, it's very hard to complain about Linux, so
"Yeah...it was the numbers that were irrational, not the murderous cult of vegetarians...." -- Hippasus of Metapontum
Basically, this would give me time to prepare a resume and work on private work and brush up my skills. If someone is paying you not to work, that doesn't mean you can't keep your skills sharp! And most companies give you a package if you're fired, so this is a perfect opportunity.
The only condition is that my IP becomes my own. A surprising number of companies own your KNOWLEDGE while you work for them; if you patent anything or write some really cool software outside of work, then that information belongs to them, not you. That's the real problem. I mean, if I go home tonight and write the "Killer App", there's nothing I can do legally (short of lying) to keep my company from claiming all rights to it.
But, if the my IP becomes my own immediately on termination, and I'm paid at least 100% of my salary for the length of the NC contract, then I'm a happy /.er
I am disrespectful to dirt! Can you see that I am serious?!
Yes, non-compete agreements can restrict a person, but usually they're geared towards keeping copyrights and business practices in-house. You can still take your skills and use them in the same type of job elsewhere. Companies just don't want you taking your programming knowledge of their in-house software to another company, but I doubt they would have a problem with you going elsewhere to program on a different companies' software. (Just don't give the other company advice on how to duplicate the design of your previous companies software).
You will never get a union of programmers. We programmers have big egos, and unions drag the superior down to the mediocre median. Since we're all above the median for programmers, no one wants or needs a union.
I also find that it would be despicable to tell a corporation that they couldn't hire permanent replacements for me.
I am for the complete Trantorization of Earth.
IANAL either, but I do know that if you live in a state like.. say.. Maryland, and you sign a NC, and then the company whom you go to work for next, which violates your NC, is in California, then you can also counter-sue for legal, lost revenue, and even punitive I think. This happened to someone I know and it was a big case. She finally won, and the Global 2000 company she went to work for countersued the little consulting company, and got legal expenses (Which were in the millions) and damages. Not only are NCs unenforceable in CA, they're straight illegal.
Try this:
Next time they try to get you to sign a non-compete clause, whip out one of your own for them to sign that says they will not hire anyone who does what you do for 12 months after you leave...
--Blair
In many countries, marriage is a contract... picture it, a non-compete clause. Even better, a no-moonlighting clause. It is not something which I would agree to under any circumstances, unless it provided me with a better income while I was NOT working ... then I would considder the deal, jeez, who wouldn't. Basically, I can be bought.
gus
.. if only.
Whenever placed in sticky situations where I am forced to sign a piece of paper or face termination (luckily not often), I always legiblky write one thing next to my name: "Under Protest".
This advice from a friend in the legal field. She claims that if it ever comes to court, I can argue that I only signed under protest because I would otherwise have lost my job. Essentially that I was coerced into signing it.
I'm not sure if this would work (luckily I've never had to test it out) but if I have to sign it anyway, I don't see how it can hurt.
All of your thoughts are belong to us. You do not own your mind, ony your dementia You do not own your health, only your disease. Do not struggle, you will be crushed.
Don't sell your soul for a job. If a company wants to hire you bad enough, they'll waive the contract. If not, move on. It's not worth the headache you'll acquire if you leave the company.
As if Microsoft is the only company that plays "hardball".
As if there's something wrong with playing "hardball".
As if anti-trust laws have anything to do with "hardball" tactics.
The author of the article obviously has already been indoctrinated into the anti-Microsoft dogma. He complains too much about Microsoft's "hardball" tactics and not enough about the *real* issue, which is these goddamn non-compete clauses.
I think it's these clauses (which seem pretty standard amongst software companies) that are a violation of anti-trust law because they actually do artificially hamper competition.
Despite what EULAs say, most software is sold, not licensed.
Certainly, the power of the non-compete waiver is in the 'vagueness' of the document. In the case of legal action against the signer, this leeway allows the law (or possibly a arbitrator) to interpret whether or not the signer was within the bounds of legality.
Of course, a judge will probably not uphold action against a developer for re-using his VB skills at another house, but if he were to use 'specific' or 'trade-secret' knowledge obtained at his previous employer, he may be in jeopardy.
Finally, remember that all of this is at the discretion of the company making you sign on the line. They only wish to protect themselves against their competitors, but does not mean that they would go after an engineer who knows how to use Word.
This is a very important issue that many technology professionals get caught up in. Kids out of college are most harmed by a non-compete waiver that most companies will impose (at their discretion).
People should be very aware that these contracts are indeed legal, and binding. They will hold up in court and I've seen it happen.
One story I have is of a guy who had been working at a tech firm for a year when a VP invited him into his office. The VP passed a document over the desk, casually, and said that he would need it returned within a day. Of course, the document was a non-compete waiver that the company was instigating. In it was provisioned that this man, should he leave his current job, could not compete directly/indirectly with his current company, and could not use knowledge that he gained at the company for 2 years. He was told, that if he did not sign the waiver, he would be fired. The sad thing is that this is perfectly legal for a company to do. It's very important for people to ask about non-competes when they first jump into a job, because it may turn up and bite them in the arse at any time.
Also, I have strong advice for young techies to be careful about signing these things. You could very easily be locked into your job permanently.
Better advice, is to find a friend or relative that is a lawyer and have them take a look at any waivers before you sign on the line.
My ex boyfriend once signed a non-competition contract for a company he worked for one summer during college. After he left their employment, he was forced to speak without the use of the letter "g" because of the work he did for them. It took a great deal of effort by his laywers to refute the clause in court, but he did eventually win.
It only goes to show that contracts can be used for great evil, and we must do out part to see that evil is not spread. This is one of the reason why I would not submit to exclusive fucking rights with my ex boyfriend, and now he has left me because he did not feel the same way as I. As a whore and a slut, I refuse to disregard my rights to fuck anything and everything I can, so long as it fits between my legs!
You fuck me because you like to fuck
You fuck me because you like to fuck
But you didn't check to see if I was contagious!