Slashdot Mirror
Enforcing Non-Competes That You Didn't Sign?
Kyaphas writes "Looks like even if you don't sign a non-compete agreement, you might
still be barred from working somewhere similar. " Yet another example of tech companies being jerks because things aren't as pretty as they were a year ago. Screwing over your customers is one thing, but
it sucks that they would jerk around employees too.
I'm sorry, but I don't see what's so wrong with this. If I were a CEO, I wouldn't want an employee taking knowledge learned at our company to a similar company. Yes, I know there are ND agreements, but they don't hold as much weight as we'd like to think.
I do work for a company where we had employees join us with CDs full of information that had taken with them from their previous company, regardless of the non-disclosure agreements they signed.
or Neuromancer, if you get lucky, you get locked into a megacorporation just out of college, and practically need a armed force to extract you.
If you get unlucky, you sell obsolete warez in teh subway.
and the new owners realize all the intellectual capital that was let go had signed non-compete contracts.
Can you imagine getting sued by a closed down company because you left to work for a competitor?
If customer databases are worth money, how much money can you get from suing ex-employees?
When I was in law school I read noncompete cases decided in the early part of the 20th century. The idea of noncompete is nothing new. The idea of enforcing noncompetition in the absence of an agreement is also nothing new. It's well-established that employees have a fiduciary duty to their employers which is not discharged by termination.
The cited article wasn't news; it was a policy analysis piece.
It's understandable that employers don't want protected information being leaked by former employees to competitors, but that's what NDAs are for. If I were heading a corporation, I'd be more concerned about making it easy to loose the investment on an employee I paid to train. But it's unfair to expect an employee to switch fields every time he or she switches jobs. If he or she has an interest in a given subject, while should the employee be forced to make such a radical career change? A better solution: Enforce your NDAs. Have your employees sign contracts that say they'll stick around for X amount of time. Don't bully them around - its bad for them, and your HR department is going to hate you for it when they can't find new hires.
I've heard of something similar:
It's called slavery. When they say that you can't go somewhere, and that you can't work for this person, or this person, that's slavery.
Granted, you're getting payed, but nonetheless, they are stripping you of a liberty.
But saying that you can't do something without you agreeing is a facist dictatorship. It's funny how when you relate government to work, that there hasn't been any revolutions yet. Other then some postal workers, but that's another story, because the work for the government.
Karma...Police...
Arrest this man...
He talks in maths,
He buzzes like a fridge..
01101001 01100001 01101101 01101110 01101111 01110100 01100001 01101100 01100001 01110111 01111001 01100101 01110010
On my old job, we had to sign an agreement that we were not allowed to work at a competetive company for 5 years after resigning. This means that, If I, for instance, left my job because my boss was being an asshole, I could not get a new job for which I was actually trained. Of course, nobody signed the agreement, after which the management decided to stop pay rises in total. This became my 'old job; pretty quickly after that...
If an experiment works, something has gone wrong.
I hope none of you are thinking about going over to Kuro5hin ;)
It seems like an independent register to keep track of which companies are being assholes about this kind of thing would be useful.
Then just avoid working for those companies.
Perhaps a disgruntled former employee of somewhere particuarly nasty could set it up. Once the word got out, it would be a popular site.
http://rareformnewmedia.com/
If you read the article, there's a common refrain. A director of manufacturing was blocked. A new company's CEO and two other executives were blocked. These are not programmers, or even analysts and technical managers. These are senior people who would be highly knowledgeable about their former employer's business details.
The exceptions are a couple people in sales in a highly specialized market who were accused of taking a customer list (which was not properly protected by the former employee), and that case where Microsoft threw its weight around and forced a company to cut 1/4 of its staff, former Microsoft employees, to avoid spending all of its time in court.
While this isn't something we can ignore - with small startup staffs, today's grunt programmer may be an "executive" at tomorrow's startup - it's hardly a return to the days when companies tried to insist that "you learned C on this job, you can't use C for 2 years!"
For every complex problem there is an answer that is clear, simple, and wrong. -- H L Mencken
Non compete clauses are not legal within the state of california under any circumstances as a barrier to trade. Non compete clauses are often found within agreements, but are as common as severability clauses, which is the point. Severability is a clause which states that an agreement is not invalidated if it is found to be unenforceable or unrecognized by the court...only that section of the agreement is affected.
Often wrong but never in doubt.
I am Jack9.
Everyone knows me.
Often wrong but never in doubt.
I am Jack9.
Everyone knows me.
This is a step too far in protecting intellectual property, and is made the more frustrating when you consider that many countries don't even consider software patentable. So not only are the United States taking unreasonable steps to protect intellectual property, it's debatable whether these properties should be protected at all! Obviously stealing source code or hardware designs has to be prevented, but the tech. industry is no different from any other and people's freedom to switch jobs shouldn't be arbitrarily taken away.
---
Most of the non-competes are for exatly what they stated, that a person cannot use the inside information of a company to better another company. It is agreeable that should be restricted. What this and a lot of other 'non-compete' clauses look like any more is the company saying, "you cannot even LOOK for another job, so if we cut your pay/benifits/perks, there is nothing you can do about it because we'll sue the pants off you and you will lose."
This is BS. Just another way for companies to have 'at-will' employment but only the company has the ability to terminate the employment. The employee is stuck without even the ability to be able to leave due to a clause in the agreement.
Don't give me the 'you knew what the agreement was when you joined' because this whole thing is an employee who had the rules changed on him and got screwed for something that was not put out and signed by all the 'agreeing' parties. Sounds like some of these negative agreement mailings you get where if you do nothing you agree to whatever terms they give whether or not you actually received the notice.
DanH
Cav Pilot's Reference Page
Cav Pilot's Reference Page
UNIX - Not just for Vestal Virgins anymore
That's non-disclosure, not non-compete.
-- nolesrule
That sounds more like a non-disclosure. A non-compete would keep you from doing the same job at another company that competes with Microsoft (who doesn't at this point).
--
Free Mac Mini
Don't like it sign it.
This seems to be a simple soltuion but a man has to eat. But it doesn't really seem fair someone is going to make you sign an agreement which will put you possibly unemployed for an long time.
What's the difference one year or one week? I'll transmit the secrets out on the web after I get fired and let anyone look at them...Doesn't really matter does it?
Slashdot Hypocrisy at work?
OK, some of this sucks. Some of the implications DEFINITELY suck.
/.? Maybe to make people aware of the issues, but it's not a particularly big deal.
But ultimately, nearly all of the cases they're talking about fall into one of two categories:
1) A non-compete contract has been signed, and the question is one of geographica jurisdiction. (since competitors can now be halfway around the world)
2) Misappropriation of trade secrets, which is illegal regardless of non-compete contracts, and always has been. Furthermore, it should be remembered that companies are _required_ to aggressively protect trade secrets, or they lose them. If they let one employee go start up a company and ignore what might be misappropriation, then they lose the right to prosecute anyone else over the same claim in the future.
The inevitable disclosure concept is a fine line to tread, of that there's no doubt. Also, the nature of what defines a trade secret is a tough question. All this article really says, after you strip out the hype and paranoia, is that some judges are coming down harder than they might, while others aren't.
Is this worth an article in C|Net and another on
"People who do stupid things with hazardous materials often die." -- Jim Davidson on alt.folklore.urban
Move to Canada. They won't stand up on court, so even if you do sign them, they are meaningless. A company does not have the right to take away your ability to earn money. If they don't want you to work for the competition, they have to pay you to sit at home.
... of their rights and responsibilities. If employees sign NDA's and/or non-compete contracts, fine; then they're clearly bound not to go to the competition with what they know. But corporations which try to infer the existence of NDA's and non-compete contracts _where none actually exist_ are _evil_, and should be subject to severe antitrust penalties if they make any legal trouble for former employees at all.
Of course, we all know better than to expect any antitrust enforcement for the next four years, don't we?
The correlation between ignorance of statistics and using "correlation is not causation" as an argument is close to 1.
If you work in a bleeding-edge industry like web-development, you should know that any future employment may be jeopardized by the advanced knowledge you have of your current employer's technology. Obviously, it is legally questionable to begin employment at a competitor while you still have much of the knowledge garnered from your current employer. This is why companies are hesitant to hire employees who used to work at Intel or Microsoft -- they are afraid of lawsuits against them because you become a Trade Secret liability.
---
Know someone who is stealing cable? Report them!
... I can honestly say that fo the most part I hate the things. a coworker of mine (when I worked at a computer field service company) was part owner of his brother's company, which was also a field service company. My coworker had been working for the same company as me for a long time, but only because his brother's company wasn't quite strong enough to provide the income he needed. Eventually our boss (the owner) asked my coworker to sign a non-compete, he said that he had to have his lawyer look it over, tensions grew, etc, until ironically conditions at the company I worked for grew so bad that he quit, went to work for his brother, and several of the customers willingly found him for their computer needs, on their own. My boss tried to sue, and lost, because of no non-compete, customers who explained their reasoning in court, etc, and he wasted several thousand in legal fees to enforce something that really can't be enforced very well in Arizona.
Because Arizona is a "right to work" state, there's not nearly as much that a company can do to bar someone from using their skills elsewhere, the former employer isn't even allowed to overly badmouth the employee when a new prospective employer call them, the old employer can be sued for slander. It's much more sane here for the worker.
"Titanic was 3hr and 17min long. They could have lost 3hr and 17min from that."
IBM had PL/1, with syntax worse than JOSS,
And everywhere the language went, it was a total loss...
The problem is that they enforce non-compete without the agreement/contract. That is screwing your employees. I have signed a non-compete contract (and got paid for it) and have no problem with it. However, if I did not sign it and my employer tried to enforce it anyway I'd be really upset.
Was any IP infringed? No. Company secrets? maybe, hard to prove - perhaps they should pursue that in court. Barring somebody from working because of what they may or may not do is absurd. That's one of the risks you take when you run a business. If you do your own due dilligence then you will lock down legally whatever you can to give yourself an advantage. Blocking somebody from talking about what you as a business haven't had the time, inclination, interest or brain power to worry about is so fucking lame as to be laughable. If the knowledge is so unique why is it unprotected otherwise. You'd think that these assholes who can fire up a team of lawyers to go after SOMEONE could somehow get their pointy heads out of their asses long enough to protect the assets themselves.
I swear to god the number of lawsuits a company has against other people is practically an asset on the balance sheet.
Inevitable disclosure, if applied to high officials in government service could eliminate their ability to become lobbyists. File a few public interest lawsuits against Henry Kissinger, George Stephanopolous, and anybody else who trades on their inside government info.
I think you would be amazed at how politically unpopular inevitable disclosure would become, and very quickly too.
DB
What is really frightening are the cases where no non-compete agreement was signed yet companies managed to enforce one after the fact. This can only happen with a collusion between a corrupt company and an equally corrupt government. In the doubleclick case the accusation was that these workers stole information. If that really was the case go for a prosecution. Alleging this and getting an injunction preventing them from working is criminal though.
Companies now seem to have the power not only to force you to sign your rights away as a requirement for employment but also to make up new rules after the fact if their legal teams didn't put the thumb screws on hard enough initially.
If you're a fan of science fictions set in a dystopian future, welcome to the future for the future is now.
Chris Kuivenhoven is a thief, beware
"It's called slavery. When they say that you can't go somewhere, and that you can't work for this person, or this person, that's slavery."
No, slavery is when you are taken from where you live, sold to someone else, forced to work for them for no money, beaten, raped, killed etc.
Ever considered studying history?
I agree that NDAs should protect an employer from having their information carted away, but most of the stuff that can be taken is intractable. How do you keep someone from taking the experiences with them, like "x was a bad design choice because look what happened when we did it here, y worked better as a solution, and I'd do it that was from the beginning if I had another chance." Forcing an employee to switch fields may get that job done, but it's overkill.
If I'm an engineer at a database company, and I don't like my work environment or I think my company's management structure is severely flawed, I'd definitely want to work for another company doing the same thing. It wouldn't be the subject that I dislike, just the particular people working on the problem. But being forced to go do something like bag groceries for a year while my NDA expires makes it potentially risky to leave my workplace. Can you say "trapped"?
Maybe your suggestion of a contract is the best way to go, but it should be the responsibility of the employee to look for that kind of work. The structure's already there for a lot of jobs. Get a contract to do some project with a company you're interested in. At the end of the contract, say 6 months, if you both like each other, then you move on to a permanent position. Kinda like dating. Then, maybe you lower the risk of getting yourself into the situation in the first place. Plus, you don't have to change the way things work already. Maybe they sound like they might suck a little, it's probably the best we're going to get for years to come.
This is a manual virus. Copy it to your sig and help me spread!
I don't understand how you people somehow feel that you have any right to release proprietary information about a previous employer.
I don't believe anyone has advocated releasing proprietary info about a previous employer. The problem is this "inevitable disclosure" concept being used to justify depriving workers of their livelyhood. Combine that with the tendancy of some people to define common knowledge as intellectual property and this becomes kinda jack-booted.
Wansu, th' chinese sailor
As funny as your statement is, It could hold up in court. I have seen recently the non-compete agreement is also signed with a non-disclosure agreement. So any tech-advancements that you created might also belong to the dead dot com. Giving the dead dot come another avenue of assest to exploit.
ONEPOINT
spambait e-mail
my web site artistcorner.tv hip-hop news
please help me make it better
if you see me, smile and say hello.
In most industries and with most products, it is not very hard for anyone with sufficient expertise in the field to understand what a competitor is doing. Heck, if you want to sell a product, you have to tell someone about it. After that your business model and products are pretty open to analysis.
My company makes car parts. There is really very little we have that our competitors don't also. We often pretend like what we are doing is something secret that will give us an advantage, but in reality our competitors are doing the same things. We know what they are doing (generally) and they know what we are doing (generally) so this veneer of secrecy is really just that. Our engineers aren't significantly more (or less) capable and our manufacturing capabilities are comperable. The only real differences are in how we handle our finances, and what intellectual property we happen to own.
The industry of competitive intelligence really isn't so much about finding "secret documents" and industrial spying. (though certainly some of that occurs) Most of it is simply doing a thorough analysis based on publicly available information. You'd be amazed how little really is secret if you are interested enough and willing to spend the time with the info to put the pieces together.
The only time I think a company might have a case for "inevitable disclosure" would be for very high up employees with access to strategic plans or for engineering personel working on not yet released projects (where an attempt at secrecy was maintained) going straight to a direct competitor in a position where that information would be a significant competitive advantage. Other than that, it's none of the company's business. Ever.
Your non-compete agreement requires you to not work in the programming field for the next five years. After that, you may again program. Have a nice day.
And if you take a step back it's really hard to blame them for this. We can't expect them to understand everything about everything. (Well alright we can expect it but sorry.. it's really not feasible.)
The article even mentions this. The only way to truly determine "inevitable disclosure" would be to extend the case until the judge and/or jury can examine the practices and basis of the 2 companies involved to see if there would be a conflict. So let's say they do that. The person will still be unemployed during all that time as well as being saddled with rising legal bills.
Ah but I hear you say the phrase "testimony from Friends of the Court" regarding the technical issues. In an ideal world that would certainly help. But you're assuming that these "Friends" would be impartial. Not to sound too cynical here, but it's always seemed to me that impartiality is a pretty subjective thing.
What's the answer? I haven't a clue.
Do I like that it's happening? No.
Do I think the courts are doing the best they can? Maybe.
It seems like a bad situation all around that really has no cut and dry answer. I'd say the courts aren't the best venue to decide this sort of thing... but it's all we've got.
The article certainly raises warning flags. What it doesn't mention is the other side of the coin.
Non-compete clauses are often ruled uneforceable.
I was sued by a company based on a ND/NC clause for a job I took. I fought the case, and won. The court ruled that the clause was overbraod and uneforceable. I am happily emplyed in a very similar job at my new company.
In addition to losing his job, the former Ciena employee lost out on "millions of dollars in potential stock profits when Lucent Technologies bought Chromatis for $4.5 billion in May," according to the Journal.
So can the former employee sue for lost wages? If I lost a few million dollars because of this, I would definitely be talking to a lawyer.
Companies are thier to make money. Like it or not they are going to protect what ever they seem valuable. On the other side is the employee who needs a job and want to do what ever they can to do well at the new place of employment. I seen have this happen before. It is not a nice thing to go through on either side.
well gee, maybe unions aren't the terrible monsters people thought they were.
US Citizen living abroad? Register to vote!
I had to deal with such situations several times and on both sides under German Law and Jurisdiction, and from the talks with many lawyers I learned:
Know How is yours, and you can do with it as you please. Trade Secrets are confidential, but only for a limited time (how long depends, but rarely longer than two years).
In general the difference between a trade secret and Know How seems to be that trade secrets will be worthless after a short time.
The IMHO correct ratio behind (German) law favouring the individual labourer is that you can not rip out a part of your brain if you leave, and a company is not allowed to own a human beeing or even parts of it, at least in Germany.
In Germany the courts also refer to "inevitable disclosure", but they interpret it that you can not be held liable for something inevitable.
It is also ruled that any non-compete clause must be compensated with at least 50% of the last monthly salary for every month it shall be valid.
So here the rule seems to be simple: You can base your career on know how, but you should be very careful with short term gains you achieve just because you have fresh insider information from you previous employer.
Without order, nothing can exist. Without chaos, nothing can be created.
Read the article. It discusses in detail the idea of inevitable disclosure, which would mean that even if you didn't sign an agreement, you could be barred from taking a similar position at another company.
Why is everyone rambling about non-competes? This is an article regarding trade secrets and reasons why you can work at a competitor.
What I like about trade secret arguments for you not leaving one job to work at another is that they put the responsibility of proof on the previous employer. Where non-competes can only be disolved if you take the initiative.
Trade secret stuff is a no brainer for those that have jobs in IT. You can't take PHP code from one business and goto a competitor to work on it. Even if you are fired and are really pissed at your boss.
Anway, saying "looks like you can get screwed even if you don't sign a non-compete" is a very inappropriate thing to put in a news blurb on here. Especially since this has been around for a while and was intended to stop unethical business pratices.
(I will admit though, I won't put it past corporations to *use* this law as if it was a non-compete, possibly saying you were let in on specific info that could damage the company if you worked at a competitor)
Regulations are finally starting to trickle their way down to the middle class. It sucks.
"One World, one Web, one Program" - Microsoft promotional ad
The Anti-Blog
Obviously it's a common practice for employers to ask/require employees to sign noncompete agreements before they begin employment. I was recently offered a position at another company (an offer I turned down, by the way) that had such a clause in their standard employee agreement. I informed them that I would not be willing to sign such an agreement, they responded that they would talk to their lawyers about removing it. All that aside - if you don't want to have to worry about noncompete agreements, move to a "Right to Work" state like Virginia, where such contracts are difficult if not impossible to enforce.
If this became more widespread, however, it would basically give employers way too much power to restrict the mobility of their workforce.
Stop by my site where I write about ERP systems & more
I had a consulting firm try to recruit me a while back. Their non-compete agreement (which was the deal breaker) claimed that their "unique consulting process" was how they differentiated themselves from their competitors. Therefore, I couldn't go to work for any competitor of theirs for fear that I would divulge the secrets of their process and unduly aid them.
There are a couple of kickers here: first, they posted the meat of their process on their web site, because their "unique process" is also the main selling point when marketing their services.
Secondly, their process was developed by experienced software consultants, who didn't get their experience at said company (because it's a fairly new company), but at previous companies. One has to wonder what NCAs were violated in the development of "the process".
It occurred to me that since the NCA didn't make much sense, I could only conclude that the company had little long-term economic incentive for me to stay, so it compensated by putting up legal barriers to keep me from leaving. Thinking about it further, it seems pretty clear that for small companies, the key threat is not an employee giving "valuable intellectual property" to a competitor, but the fact that an employee with "valuable intellectual skills" walked out the door. The damage done to a small company just by a key employee leaving can be huge.
At this consulting company, I looked around at the developer side and saw a very small core. It later became obvious that they couldn't afford to hire too many good geeks and had to use every trick in the book (besides paying them more) to keep them on. Specifically it became obvious three months after they tried to get me when they ran out of money and went under.
Unfortunately, non-competition clauses are very bad and very legal by precedence. Relative newcomers don't have the choice, usually, so know your own contract. Once you are free of that first contract, don't ever sign a non-compete again.
One more word of advice: contracting yourself out to a company is not being employed by that company. This primarily applies to government workers who wish to apply their skills and avoid a contract violation ("inside information").
----------------------
IANAL, but I have one in the family.
The best thing to do with annoying contracts is to X out the part that is too strictly worded and replace it with something that is ethical, fair, and non-restrictive.
And don't argue the point with the company lawyer. Just get your boss to sign it. The lawyers are paid to screw you over with contracts. Your boss is just there to work you to death.
I mean, a good example was my IP agreement. It said that anything I did in my spare time was their property. I replaced it with anything done in my spare time with no company resources, with the specific example of my 3D engine, belonged to me. The wording was a little vauge, so I might have not needed to do that, but it was a good measure of safety.
The same thing goes for non-compete clauses. You adjust the meaning to something that is fair. Because, face it, it's not exactly fair to your employer if they pay $10,000 training you in SAP or some similar valuable skillset and you quit the day after you are finished being trained. It isn't fair for you to take proprietary company information with you when you leave.
I don't look upon it as planning to quit. If your employer is free to fire you at will, you should be free to quit at will and not be burdened by unnecessary restrictions. Your employer should entice you to stay with benefits, not slavery.
Gentoo Sucks
legal action was threatened against me when i left a porn dot com with my personal puppet. this puppet was for my "personal" research, yet X company felt that this puppet could be "used" for business advantage. they seemed to feel that since it was used in for professional purposes that it was company intellectual property.
"Screwing over your customers is one thing, but
it sucks that they would jerk around employees too."
Now, if *THAT* doesn't explain why the whole tech industry is falling to pieces, I dunno what does.
Those lowly customers, boy, are what *KEEP YOU FED.* You can replace the employee easily enough, especially in this market, but it's damn difficult to replace a customer: once a customer walks, you've lost him -- and a dozen others that he talks to -- for life. And winning a new customer is dozens of times more expensive than keeping an existing one.
If Taco's attitude is prevalent, I suggest that everyone sell off their tech stocks and invest in, say, Sears, because there is *no hope* for the industry.
Sheesh.
--
--
Don't like it? Respond with words, not karma.
Is this Tony who is smarter than the average bear for avoiding such non-compete clauses or is it because Juniper and Cisco both rely on the stock options to retain key members of staff?
A journey of a thousand miles starts with a brutal anal raping at airport security
I haven't signed an employment agreement for my past three jobs. It's very easy - take advantage of bureaucracy. Generally this is how I did it...
1) You have an interview and accept an offer. This is generally over the phone. Don't sign anything.
2) You land at the client site and do the stupid hand-shakes and the undergo the first day's round where they show you the coffee machine and where the restrooms are.
3) After you work for a few days, you get a call from the HR dept. of your contracting agency asking you to sign and mail your contract. Just ignore them.
4) You fax your timesheets, you get paid.
5) Once in a while, you get a reminder that you haven't sent your signed contract. Ignore them.
6) Quit when you're bored.
The reason this works is that, generally, contracts (for programmers, at least) are total crap. They aren't going to actually fire you over it, because they are making $$ every week off you. The worst thing that can happen is that they'll pester you, but if you manage your phone calls and emails properly, you can ignore them.
This is not just theory, I've done this for years. Trust me - they are too stupid and slow to catch up 90% of the time, because they have a shitload of paperwork to do every week to follow up on some contractor. For once, take advantage of bureaucracy, instead of being a victim.
In the worst case, they catch on to you, you just say you lost your paperwork, and sign it if they pester you too much.
Unless, of course, if you're too ethical. But then, is your agency? If they can fuck you, you can fuck them.
Opps.. Tony Li and he now works at Procket.
A journey of a thousand miles starts with a brutal anal raping at airport security
I owe my employer nothing. I brought skills with me and I'll take other skills away. I won't copy their source code and I won't steal their algorithms developed through months of painstaking research, but if they try to cripple my ability to work I'll make sure their secrets are spread worldwide.
Most business idiots don't realise the stupidity of non-compete agreements and fortunately the people I work for know they'd be unable to hire anyone with any skills if other companies used these stupid things - the whole industry they work in would collapse in a year if we had non-compete clauses because no-one would be able to hire anybody with any skills, they'd have to hire janitors to do their coding.
#include
Last time I checked, if you didn't sign a contract, you can't be held liable for its contents. And non-competes are contracts.
---
The AOL-Time Warner-Microsoft-Intel-CBS-ABC-NBC-Fox corporation:
I pledge allegiance to the flag...
of the Corporate States of America...
rade secrets have no protection under US law. If you didn't patent it or apply the other IP protection systems to it then you are fudged when someone walks off with it. Got the recipie to Cocacola? start your own company.
Trade secrets are grey areas, you protect them from escaping. The law doesn't protect them because you passed on the legal protection schemes available.
Patents, yes you have to agressively protect them, or lose them. (This country rules when you look at the old laws, make the company do the work if they dont then it becomes public domain! it's the new laws that are written by morons and corrupt/bought poloticians.)
Do not look at laser with remaining good eye.
IMO, it is reasonable to expect that an employer will not want you working for a competitor, regardless of whichever side ends the employer/employee relationship, and regardless of whether a NDA or NCA was signed or not. And even if it wasn't reasonable, if a former employer decides to sue you for working for a competitor, it's going to cost you money to fight it (unless you were savvy enough to get the new employer to agree to pay any legal bills that might arise from the situation), which makes any victory over that employer a pyhrric (sp?) victory at best.
That is one reason why it pays to not get too wedded to one particular problem domain. Each job that I've had, I've been working in a different problem space, and have learned something from each one. It's easy to do in software; I don't know how easy this is for other professions. In my experience, knowing the details of a particular language or OS seems to be more important to prospective employers than the specifics of the kind of work you've actually done in the past.
seems to apply mostly to people who can walk out of one company with the customer list and marketing plans in their head and go right to work in marketing for a competitor. Since I consider most executives and salesmen to be ethically impaired ;) to begin with, I can hardly disagree with the courts that they would mis-use their inside knowledge to the detriment of their former employer.
The only case cited where this concerned a technical job was the Allis-Chalmers case at the end of the article -- and that court simply enjoined the engineer from working on the same device he had been developing for the previous employer. Not too unreasonable...
Thanks to the NASDAQ's fall I was recently laid off from a job where I had signed a non-compete clause. Now in the letter that they had me sign in order to receive my severence they had me acknowledge that this clause was still in effect. IMHO if I leave on my own free will I SHOULD be bound by such an agreement. BUT if they let me go without cause (downsizing), well that agreement should be null and void. I have a right to earn a living. Now in my case I am sure that their interpertation of a competing firm is quite narrow, and I'd have to relocate to work for one of them (which I won't) so the agreement isn't going to haunt me. But I don't think an employeer should be allowed to have his cake and eat it too. If they don't want you walking out with the company trade secrets fine, but then they have to keep you employed, unless you are caught red handed in the cookie jar so to speak.
What was most offensive to me was the suggestion that companies could pay some kinda fine or levy to make everything equal ... I'm some kind of *PRODUCT* that can be bought and sold? Didn't we have a civil war about that already?
Free Techno/Jazz/DNB/MI Music by guys obsessed with monkeys!
Non-compete clauses do hold up in California under certain circumstances. A former employer wanted me to sign a non-compete that would prohibit me from working in the same field for two years. That won't hold up in CA, according to my attorney.
IANAL, but as I understand things, to be valid in CA, a non-compete agreement must have some form of compensation (the company offered a cash bonus if I'd sign it, so they were covered there), and must leave you with a reasonable way to make a living using your skills and knowledge.
They can't tell you, for example, "Sorry, Bubba, but you can't write code in Java for two years." They can, however, tell you, "You can't create a directly-competing transaction system compatible with our interface formats that would be sold to the same customer base."
Screwing over your customers is one thing, but it sucks that they would jerk around employees too.
Sure, some overplay it, but some employee's *are* out to get their employers. I want some real numbers. What is the actual ratio to employee's who left any tech companies that were barred from any other job?
As the article mentioned, the real problem is not the law, its the non-technical judge applying them. We're in a new era, judges will catch up sooner or later. In the meanwhile, advocate knowledge of what does, and what does not infringe, but don't say the laws are bad.
---
ticks = jiffies;
while (ticks == jiffies);
ticks = jiffies;
Have you read my journal today?
-dB
"It if was easy to do, we'd find someone cheaper than you to do it."
This can be compared to Football Transfers in Europe (and presumably in the USA). In those cases the player is worth the money, in this case it is the employee.
Rival clubs can purchase the contract for a player from a club, and the player can play for that rival club instanty, even against their former club. There is no 'non-compete' clause, although it is possible for clubs to come to agreement between them during the transfer talks.
This is clearly another step towards corporate ownership of employees, and a step away from employee freedom of choice, in return for increased wages. However, we are in a knowledge based economy now (cf. skill in football), so the value is in the knowledge.
Imagine working for your current company, halfway through a contract, when a rival company approaches your company and offers them $100,000 for you (and your knowledge). If the company accepts, and you accept the wage terms of the new company, then kazow, new job. Former employer has recompense for losing your knowledge, you get the wages you want.
If you are wanted, that is!
In Europe, in football, a footballer, Bosman, left his club in order to join another club midway through his contract. His former club did not give up the contract though, so he could not play for the new club. This is how non-compete agreements were enforced by sly clubs who didn't want to lose their employees. However, the EU ruled eventually that footballers have the right to leave their club whenever they want, etc. Lots of mess, resulting in transfer fees now being "Training Recompense", etc to the new club. I don't know all of the details, I am sure someone else does though.
If employees could just move around at will, they might find better jobs with higher salaries and managers that don't treat them like shit. It could result in companies having to spend more money on the most valuable people to keep them happy. And the ones that weren't kept happy would start competing companies that would drive the costs of goods and services down, hurting the profits of the company that didn't treat their employees well.
Wait-- what's that you say? I'm NOT posting in the Large Corporate Shareholders forum? Slashdot? What's that? Hackers? Damn! Alright, where's the button to cancel this post, I can't let them see what a greedy, immoral asshole I am-- excuse me, dedicated capitalist, I mean. Ah, that looks like it, the "submit" button will erase this...
Maybe it's just me, but that sort of thing can't be prevented by either NDA's or non-competes. That's typically referred to as "experience", having learned from past mistakes... Everyone goes through that, and I don't think companies should be allowed (or even try) to stop such.
I agree that ex-employees shouldn't leave a company and take everything (or the vital core components) with them, but at the same time, there are some elements of "I wrote it, this is mine" involved. If you worked as a programmer for a company, and when you left you took a copy of the source code YOU wrote, especially if those are non-industry specific (i.e. screen formatting utils, disk retrieval bits, etc), there shouldn't be anything wrong with that. However, if you took the entire source code, including documentation (or, in some cases, all the documentation), that would be a problem.
Now, I understand that there is some middle ground in here. Your mileage may vary, see dealer for options.
But of course, that's not even my opinion, so I could be wrong.
I am dyslexia of borg - your ass will be laminated.
No, patents are patents. You can choose to not protect them, protect them vigorously, only chase certain offenders, or even wait ten years and then go after infringers (can you say GIF?).
Trademarks, on the other hand, must be vigorously protected.
Unless you elaborate on your specific training and job, I can't really take this seriously. There's a hysterical assumption here that any software job is classified as "competing" when it's not. Not one single example in the article dealt with a situation where there wasn't a direct market competition between the companies involved. So if you work in secure digital transactions, you don't get another job developing secure digital transactions. But you can go out and get another job, using the same programming languages you've been working with doing just about anything else in this huge rich market we call software.
The common thread that the article gave lip service to (without actually stopping their hysterical tone) is that non competes cannot (and mostly do not) stop you from getting a job in your field. If your field is computing, there are more jobs out there that DON'T fight for market share with your old one than those that do.
The marketing exec who they talked about leaving pepsico could do the marketing for almost any damn product in the world, but they got an injunction against him working on the marketing for two single product lines within a multi product company because those two product lines would be marketed in competition with the product marketing he had previously designed for Pepsico. Marketing expereince is pretty flexible, especially if you're way up in a major company. The non compete action was not going to stop him from working, it wasn't even stopping him from working "in his field". It didn't even stop him from putting his training and expereince to future use to be a more valuble employee to someone else. Just not in direct market opposition to them.
Kahuna Burger posting AC cause I killed all my cookies on this box and don't remember my password. :(
Taco writes at the end of the story,
<quote>Yet another example of tech companies being jerks because things aren't as pretty as they were a year ago. Screwing over your customers is one thing, but it sucks that they would jerk around employees too. </quote>
Why is screwing customers okay?
And if it's okay for the company to screw customers, do you really expect the same company to hold it's employees in higher regard?
A host is a host from coast to coast, but no one uses a host that's close
If you program for a living, then they must prove that you are using their secrets in your programming. A company cannot deprive you of your livelyhood, just because they think you are using their secrets. Most courts would find that unacceptable. On the other hand, IANAL and if you are looking at slashdot for legel info, you might want to ask a lawyer for information about programming.
Realrates tried but took some flack for it. Since they try to provide a service, they were vulnerable to heat from the stinkers. http://www.realrates.com/agtrat97.htm
What happened to the doctrine of Prior Restraint?
Worse, this is yet ANOTHER example where the flawed legal concept of "Intellectual Property" is being twisted into a tool of destruction.
Intellectual Property must die!
"A microprocessor... is a terrible thing to waste." --
"A microprocessor... is a terrible thing to waste." --
GeneralEmergency
Even when Microsoft's not involved, it's involved. Did no one else notice the title of the suit PepsiCo v. Redmond (1995)?
MacOS, Windows, BeOS, GNOME, KDE: they're all just Xerox copies
I've come to believe, in fact, that the things you mentioned, like formatting utilities, disk retrieval bits, et al, are definitely, if not wholly, the property of the developer. When I write something these days, half of it comes from code I've already written(hopefully in the form of an include instead of good old cut 'n paste). I'd be set back months if I had to rewrite all that stuff from memory!
This is a manual virus. Copy it to your sig and help me spread!
A number of companies have tried to reduce consultants to employees and employees to serfs.
EDS was one. It hired people out of high-school, trained them in an "information tech boot camp", and charged them something like $5K (a couple decades ago) for that "training" if they left within six months. They paid them peanuts and no stock options, but picked up their medical expenses. Result: They'd be unemployable and at risk to life and limb if they left. Then EDS cut an exclusive - and finally merged with - GM, throwing thousands of contract programmers out of work there (unless they signed on with EDS, of course). Serfdom.
Ross Perot (EDS' founder) lobbied until the "safe harbor" provision of the tax code was changed, with the net result that if consultants (or their families) owned controlling interest in firm they worked through - even if it was incorporated - it would be treated as a front for direct employment. That combined with a tax court ruling treating their clients as "employers", making them liable for the consultants' income tax if the consultant screwed up on paying quarterlies. The result was that consultants HAD to be employees of corporations they didn't have significant control over to be employable in the auto industry. Near serfdom - you get to change farms and lords, but can't run your own show.
(I understand some of this has changes since then.)
Now we have Microsoft. If you are granted access to their internal code while working with their partners you have to sign a non-compete that takes you out of most of the software business for years afterward. If you work directly for them you get little or no experience with non-Microsoft software and if you leave they'll enforce non-competes - even terms you didn't agree to - to keep you from working anywhere in their space.
Who in their right mind, knowing this, will ever sign on with them?
I know there's a stereotype around here of Bill Gates as devil. But this makes it look like their employment papers grant them your soul.
Bantam Dominique roosters crow a four-note song. Once you've heard it as "Happy BIRTHday" you can't NOT hear it that way
I know a couple of people who, as a part of the non-compete they signed, got compensated in addition to any severance they were due, if they were unable to work because of the non-compete. The companies balked at first, noone had ever asked for this but finally gave in. The reasoning used was, it now makes the non-compete a two way street and the employee isn't giving up something for nothing. It may be a long shot but the odd's are zero if you don't try.
Shop smart, Shop S-Mart.
Employees have gotten screwed by employers since there have been employers. Nothing new about this.
All the talk about employees needing to watch out for themselves, manage their own career, etc. have gotten employers thinking that ``Well, hell, then. If they're not going to see us as the sole purpose for their existence, then let's show 'em who really running their lives.''
Keep it up employers! You may just start seeing technical worker's unions forming within your company.
Doesn't matter WHERE, you're going to get dumped on by some company- there's non-tech sector companies where I just will not do business with unless there's no other options. Tom Thumb (a division of Safeway down in Texas) is one such company. Someone managed to steal my checkbook and went on a 5k shopping spree with forged checks. Some of them landed in a Tom Thumb 10 miles away from my then apartment for $400 total. I presented affadavits to the effect that these were not my checks and had proof thereof sent to them and several other locations- they insisted (and I suspect that they still do) that I wrote those checks and will not accept a check from me because they will not pull me from their bad check database.
Doesn't that qualify as jerking me around? There's others, but you get the idea. Most small businesses usually operate on the up and up, but as you get bigger and bigger, the company gets further and further removed from the customer and keeps insisting on "the customer being first" but doing everything they can to save those dollars for absoulte maximum return on their investment- including things that put the customer and/or employees (which is worse- because they're going to put your customer in that same place because they're looking out for #1...) dead last.
I am not merely a "consumer" or a "taxpayer". I am a Citizen of the State of Texas
Ok, all intelectual property exists to incurage development. I can see that allowing people to remove detailed writen (copyrighted) information from one company and give it to another could discurage initial funding of development, but if a person is just plain useless (i.e. you want to fire them) then they are not likely to really be supper dangerous (i.e. they will be mostly useless to you compeditor dispite having extra information). I say it should be illegal to prevent people from talking about anything. If you piss them off and they sell you out then you were not giving them enough stock options.
Morally, if a company starts pulling this shit with their emploies then the employies should secretly sell out their company. Hell, anonymously communicate all your companies patent plans with one of those places which exploit patent law (ala RAMBUS). Your ass hole boss will just love it when he discovers that all his patents are owned by someone else. Nix one startup which tries to exploit it's employies.
The Christian religion has been and still is the principal enemy of moral progress in the world. -- Bertrand Russell
Yes, one could intrepret it that way, but there is, as usual in life, more to this than meets the eye.
"A microprocessor... is a terrible thing to waste." is the excuse I gave to my daughter for many years for NOT buying her a video game console. Although I finally gave in last year, I am pleased to report that this tactic has resulted in a thirteen year old that reads voraciously and at a college level. She also is highly computer literate and actually reads Slashdot from time to time.
If you like, you can quote me too. I have several others:
"The problem with ignorance is that you can never be sure that you're not afflicted with it."
"Often, the difference in being labeled a 'Heretic' or a 'Visionary' is your sense of timing."
"My Three Rules:
One. Take control of your environment.
Two. Question Authority.
Three. Be the best, or you'll never get away with one and two.
"People who obsess about the Sigs of others can bite me."
"A microprocessor... is a terrible thing to waste." --
"A microprocessor... is a terrible thing to waste." --
GeneralEmergency
...I suggest that everyone sell off their tech stocks...
Why don't you type that suggestion up and mail it to last year, when it might have been helpful!
Er ... no. Screwing over your customers is absolutely unforgivable. Which school of ethics does Cmdr Taco embrace, exactly?
Now it seems as though companies want to return to the days of loyal employees. But they want it to be a one-sided deal. Instead of attracting loyal employees with competitive pay and excellent benefits, they want to use the corporate-corrupt government to FORCE them into submission. I can, to some extent, understand a no-compete clause, but I can't fathom using the courts to enforce a nonexistent clause. Somebody back of the list of replies posted the bright idea of keeping a database of companies using these kind of tactics. I hope somebody does create such a database, and we should all just avoid those companies like the plague. They think it'll be cheaper to go through the courts than to keep their employees happy. If everybody avoids them, they'll soon see just how costly their mistake can be.
GreyPoopon
--
Why is it I can write insightful comments but can't come up with a clever signature?
I posted and all I got was this stupid sig
Many states (if not the US, don't know) have laws that limit the usefulness of noncompetes. You can't force someone to not work in their area of expertise, especially if that represents their livelihood.
As for NDAs, they're also worthless. There's little hope of ever enforcing one unless you do a lot of diligence beforehand. That never happens, since most companies would require an NDA first anyway. Beware of these, they will not protect you. If you're the unscrupulous type, then they're a good tool to learn stuff from other companies (tongue in cheek, but true).
We need a federal law. One of the following:
* * *
EITHER
A.
You don't want us working for a "competing"
company for a year? OK. FINE. BUT then
you must PAY US our old salary for that year.
or
B.
No such silly non-compete clauses are valid.
* * *
Now TRY getting this passed in our corrupt
cabal of a government (corporament?)....
What infuriates me about this practice, i.e. both signed and implied noncompetes, is that it is used to suppress compensation. "We know your work is valuable and innovative. For that reason, we won't let you work for anyone else. Since you can't go work for anyone else, we don't have to pay you what you're worth."
It's not exactly slavery, but it is revolting. Intellectual property as a slippery slope to human cargo.
On the other hand, companies refusing to hire people with a history of job hopping is even better.
-a.e.mossberg
It seems that US companies are moving towards an economic model that can best be described as corporate feudalism, where all employees are serfs with many obligations and few rights. If nothing is done about it now, in 20 years, employees will not be able to leave any company to work elsewhere without good reason.
Perhaps such a grim future can be averted if all employees affected by this sort of agreement joined forces so that they can lobby lawmakers, perhaps as the lobbying equivelant of a class action lawsuit. Or perhaps even *gasp* a union for current employees. The law needs to be changed so that employees retain their right to earn a living.
What the legislative goal should be is a balance. Employers should be able to protect their trade secrets. However, a strict time limit of 12 months should apply, and employees who are hindered from working elsewhere as a consequence should receive full pay from their former employer.
The former employer is gaining the benefit of reduced competition, so they should be made to pay for it. The former employer can easily afford this because no employer ever pays full price for the cost of labour. Like all tradable commodities, labour is always purchased wholesale and sold retail.
Such noncompete clauses should apply only for 12 months, or the former employer stops paying the employee, whichever is the lesser. And of course, an employer wouldn't need to pay a former employee who finds unrelated work to gain the protection of a noncompete clause.
It would then be in the best interest for employers to help former employees to find unrelated work, because they would not have to pay them to sit idle, and they have less competition. The employee wins as well, because they can pursue new challenges instead of vegetating for 12 months.
--
The only thing necessary for the triumph of evil is for good men to do nothing. - Edmund Burke
Gov't is the only entity that can legally attack you directly. Corps can only do so indirectly, using the government as their agent. The corps might initiate the process, but hte guns pointing at you are from the gov't. Corporations don't usually engage in direct action. It is illegal, would make them look REALLY BAD, make you look like a victim, and is unnecessary. They ge the courts to do it. Now you get hurt be the full force of the government (way stronger than any corp), they look like a victim, and you look like a criminal. People won't stop trusting the corp, they stop trusting you. So not only do you have fines, imprisonment or death (*) , but you get a reputation for being a criminal and untrustworthy.
Vote out the people in our government. Vote for the incumbents' main opposition, or just vote Green Party straight down the line. If enough people (there is the catch) did that, we could win these battles overnight.
If one people would wake 5 others out of their complacancy and get them to do likewise, we could win this.
(*) The DeCSS case could have been worse - leaking that scret could have been said to have caused such economic damage to US business to constitute "economic treason", for which there is a federal DEATH PENALTY - just wait 10 or 20 years and you may see such a situation actually arise. A possible future headline for a similar situation: "Hacker sentenced to die for deliberately damaging the US economy by destroying intellectual property".
Just because it CAN be done, doesn't mean it should!
Call me ugly while you're at it too; I would've appreciated someone else sparing me from long winded writing. My time is precious. Other folks might appreciate the heads-up. You're not helping them.
--
Me pican las bolas, man!
Thanks
--
Me pican las bolas, man!
Thanks
Jaco
If you didn't sign a non-compete, they can't enforce it in some states, but might find some implied agreements in others. Only your lawyer knows for sure. In general, non-competes aren't ordinarily applied, since they violate public policy and implicate the 13th Amendment. Even signed non-competes are unenforceable in many cases. Your mileage may vary -- see a lawyer.
There have been interesting developments in the laws recently that have had similar impact however. The issue is confidentiality and trade secrecy. You don't need to sign an agreement to be bound by a duty to maintain confidentiality -- and an unsigned publicly known company policy followed by a subsequent receipt of a paycheck (i.e., you didn't quit immediately) can give rise to a duty to maintain secrecy. (Indeed, simply receiving information that you know or should have known to be a secret can give rise to such a duty).
What this means is that you cannot use or disclose the information without consent, else you risk liability for misappropriation. One remedy for misappropriation is an injunction.
All that is old news. Here's the recent (not really all that recent) development: You can sue and get an injunction not only against a misappropriation, but against a threatened misappropriation as well.
Courts have taken this language to mean that if you take a job where the "outing" of confidential information is "inevitable," that constitutes a threat, and entitles the former employer to an injunction.
The invevitable disclosure doctrine is way simplified as described here, but that's the gist of it. Again, it isn't everywhere, your mileage may vary. See a lawyer.
They can prevent you from being paid by a competitor, probably even as a consultant. I saw nothing preventing you from working on open source during the no compete clause time.
Does an open-source author derive financial benefit from the reputation increase? If so it's commercial work. Does the open source project software perform some function that a Microsoft application performs? If so it's competition.
Can Microsoft claim that the open source project's code exposes a Microsoft trade secret? They can sue the ex-employee into bankruptcy for exposing it. (And they can sue even if the employee DIDN'T actually expose a Microsoft trade secret. Their lawyers against his - and he probably gets to pay his lawyers even if he wins.)
Bantam Dominique roosters crow a four-note song. Once you've heard it as "Happy BIRTHday" you can't NOT hear it that way
I have no idea how people can claim what is in someone's brain as property, or a secret. Once you tell me something, it's no longer your secret, it's our secret. Look at it this way. Back in the day, the master craftsman would have an apprentice (sp?). The apprentice would learn everything he could, then *gasp* start his own shop up! Oh no! He took the skills from his previous 'employer' and used them for his own benefit.
Soon every thought we have will be watermarked, and in order to access knowledge we have we'll need a proper DMCA-compliant thought decoder.
Well, maybe it's not quite that bad, but the fact remains that trying to prevent me from applying a skill I learn is preposterous.
If you live in a right to work state, most non-competes aren't worth the paper they are printed on (according to out HR officer, at least).
Jaysyn
There is a war going on for your mind.