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Ex-MS GM Can't Work 'Anywhere In the World' For Salesforce
theodp writes "Be careful before you sign a Microsoft non-compete agreement, kids. GeekWire reports that King County Superior Court Judge Kimberley Prochnau has enjoined former Microsoft General Manager Matthew Miszewski from 'working in a marketing role in salesforce.com's public or commercial sector anywhere in the world.' So what did onetime Wisconsin State CIO Miszewski do to warrant the global ban? 'He was a major evangelist for Microsoft,' explained Judge Prochnau, who added that the 'thrust of the order is to preclude him from being the evangelist for Salesforce.com that he was for Microsoft.' Microsoft, which has warned Congress that restricting the flow of talent is ruinous to America, said in a statement that the company is pleased with the ruling."
His "non-compete" agreement is only valid for a year. I'm sure he put away enough moo-la at MS to take a vacation... I know how some here feel about "non-competes" and MS, but good grief, he signed the agreement, he knew what was in it, and it's only a year.
If you want news from today, you have to come back tomorrow.
Let me start by saying that I think that non-competes are generally bullshit. I personally gave up some benefits to avoid signing one where I work, just on principle.
That said, for high-level people with insider information, it may be a special case that I could be persuaded to accept. In any event, this guy only has 8 months left on his contract. The summary leaves out that vital little detail.
W..w..W - Willy Waterloo washes Warren Wiggins who is washing Waldo Woo.
Non-competition agreements are not meant to be enforced this way. This is akin to preventing a software developer from ever making software for another company, rather than preventing one from working on Yahoo! Messenger if his previous job was working on Windows Live Messenger. The problem with the latter is that he could "steal" a Microsoft "secret" and use it in Yahoo! Messenger, whereas the problem with the latter is that it prevents the guy from ever using his general purpose skills, education, and experience ever again. I highly doubt this guy learned any Secrets Of Evangelism Known Only To Microsoft (TM) and is stealing them for Salesforce. The judge is an idiot.
I had a girlfriend exactly like that, once. She was all "If I can't have you, then NOBODY CAN HAVE YOU!". It got pretty scary there, for awhile.
If he does, they can sue him again in that court. That is essentially what he tried here: he wanted to work for Salesforce.com in Canada or other places outside the US, and the judge disallowed it.
"First they came for the slanderers and i said nothing."
I was dissuaded from accepting employment with Amazon after an attorney warned me that he'd handled several cases where Amazon came after an ex-employee who was now working for a web startup. There are few online business niches Amazon doesn't consider itself related to, and Amazon, like MS, does business all over the world, so the usual restrictions on geographic area don't apply.
All of those employees, when threatened, apparently backed down and started their careers over in packaged software design, in-house corporate business apps, or brick-and-mortar marketing. They couldn't afford to go up against Amazon, or to "sit out" of the online business for the 18 month non-compete term required by Amazon.
Precluding someone from working in their field at all and putting food on their table is a form of violence. I realize he probably has enough money to eat, but when this kind of judgment is applied to the people making far less money the inevitable tragic response shouldn't surprise anybody. I could see him restricted from marketing for Redhat, but this is a sickening example of imperialism of the very rich. We are facing problems now that our founders never envisioned and we need to stop this once and for all. Can you imagine this kind of "agreement" preventing farmers from farming a hundred years ago? These kind of laws have really screwed up the free trade of services and created a type of serfdom. We've lived with it for years, but when the chains become too tight it is time to act. What sort of law or laws need to be passed to stop this? Can we legally ban the "you can't work anywhere else" covenants which seem to be necessary to work anywhere besides McDonalds? Why is it the arrogant software companies that think they can make slaves of their workers?
... for high-level people with insider information, it may be a special case that I could be persuaded to accept ...
Confidential information (trade secrets, etc) can never be revealed by a former employee. The presence or absence of a non-compete agreement is irrelevant to such information.
For the most part non-compete agreements are a mind game and are not enforceable. Exceptions usually involve owners who sell a company. For high level execs the legal justification usually has nothing to do with non-competes but rather that in their new role they will inevitably use confidential information of the former employer. Note "use" not "reveal", as in quietly make decisions without fully explaining their reasons.
at least in Germany such clauses (called "nachvertragliches Wettbewerbsverbot") are legal.
I think it depends on the length of the agreement and the impact on the employee. If the noncompete bars an individual from using his or her current skill set at any job in the industry - that's effectively banishing an employee from employment for the length of the agreement. That should not be allowed. Another consideration is does the noncompete remain in effect after termination? Because working under the threat of being fired and made unemployable for a year is a hellish thing to contemplate. Here is a hypothetical: "If you don't start working weekends for free, you are fired, and will have to go from making 70k a year to making minimum wage for the duration of our two year noncompete". That's just abusive.
They are legal, but your previous employer gets to pay your salary (for doing nothing, or at most looking for an adequate, non-competing job) for the duration that they insist on keeping you out of employment via a non-compete agreement. I think that's exactly how this should work.
I highly doubt this guy learned any Secrets Of Evangelism Known Only To Microsoft (TM) and is stealing them for Salesforce. The judge is an idiot.
You are mistaken. For example as an evangelist this guy may know who Microsoft's weakest clients are, those most receptive to a pitch from Salesforce. He may even know their specific concerns and use such insider knowledge in his pitch.
Skills and information are different. If I learn Android development (a skill) on a job that's one thing, but a list of customers or future product plans (information) is a different coloured kettle of worms.
Confucius say, "Find worm in apple - bad. Find half a worm - worse."
I had an offer to work at Microsoft just out of college. I was seriously considering the offer until I saw the draconian anti-employee non-compete they wanted me to sign. I told the recruiter that I didn't feel comfortable signing such an agreement since Microsoft works in so many different areas that there was no way to avoid some sort of conflict. I was assured by the recruiter that they don't usually enforce the agreement. Maybe that is generally true, but this ruling definitely proves that they will enforce it on occasion. Instead I ended up with a different company in CA where such draconian non-competes are illegal and most companies don't even attempt to get you to sign one.
I should also add that not all non-competes have to be as evil as Microsoft's. One company I had an offer for had a similar non-compete but it had a clause that if they decide to enforce it as long as it's in force and you're looking for other gainful employment they would continue to pay you your salary until the non-compete expired. I felt that this policy was more than fair since it allowed the company to decide how important enforcing the non-compete was and didn't have such negative consequences for you as an employee should they choose to enforce it. I personally feel all non-competes should include such a clause otherwise I would NEVER consider signing one.
Non-competes can be a necessary harm to inflict on employees. For those rare cases, the company should be required to pay the employee the same salary and benefits for the duration of the non-compete. Too expensive? Well that is the exact harm the employee is being subjected to so if that is too expensive then a non-compete isn't really appropriate, now it is. The employee can actually be harmed beyond this amount if his skills are deemed to have become out of date from not having done work in his field or if he has to turn down a better job than the one he had or if he develops a depression or other ailment from his forced inaction.
How do you enforce a non-disclosure? Kindly ask the person not to use any of the knowledge or experience he acquired on the previous job? Even if the person was serious in agreeing to that, its hard to not subconsciously use the information and skills that you were hired to provide. How do you know the person used that information or information they had before their original job. If you want any type of successful restriction, non-compete is the real way to go.
Skills that you learn in your job are not a trade secret. Information can easily be a trade secret. But for most people in most situations, information can be kept separate. There have been very few cases where someone was prevented from taking up a new job; I think one case was a quite high level employee whose job it was to investigate marketing strategies of the companie's competitors, and a judge decided that in this particular case it was inevitable that he would use knowledge of his old companie's marketing strategy in a new job. Bot lets say an engineer developing graphics cards for ATI should be able to work at NVida without giving away trade secrets. (Remember that anything that is patented cannot be a trade secret).
In UK, and I think EU generally, non-competes are much harder to enforce. The emphasis is on the ex-employer to prove that they have a legitimate business interest at stake - merely being in competition is not enough, it would have to be e.g. you moving to a competitor and previously had access to customer lists. That interest would have to be sufficient to override the public interest in free trade.
Court will also have to decide that the restrictions are reasonable. If not, the whole thing is invalidated, they cannot reduce an unreasonable term to a reasonable one. Time and distance are obligatory textbook examples (6 months within city limits, OK, but forever globally is never going to fly), as are some form of sensitive information - particularly access to customer lists.
IANAL, my training is to spot a potential issue and give a ballpark-ish explanation why a client needs to see one, but I'll have a go at guessing this may well have been held valid here too. The position of the employee is highly significant. Any restriction for a supermarket shelf-stacker isn't going to hold, but a bigwig marketing GM for an international company going to a competitor... Well, global might still be a bit of an ask but state-wide I doubt would be much of an issue.
(In practice it's not uncommon to require lengthy notice periods that the employee can be put on gardening leave.)
Generally, the agreement has ended when you leave and is difficult to enforce. This case has gone way out there as 'anywhere in the world' implies that American law can be imposed on the rest of the world (something that the rest of the world is getting seriously pissed off with America trying to do). If he goes to another country and works he cannot be called to an American court to answer for it. When he returns said American court may not chose to understand that he was outside their jurisdiction... but hey, judges are all old and crazy. It does not matter where it was signed, what he does in another country is not to be considered in America except in limited situations and this is not one of those.
I love stacking my barbecues in the shed at the end of summer - you can't beat a bit of grill on grill action.
I suspect if this case were appealed that the judge would be over-turned because of the unreasonable scope of the ruling. I have never ever seen a court enforce a non-complete globally. That is just outrageous and it is punitive to the employee and might even be a violation of his Constitutional rights to pursue happiness through employment in his field. I seriously doubt he is irreplaceable. He might be hard to find a replacement but there is someone out there perfectly capable of doing the same exact job. Microsoft isn't going to eliminate the position just because this guy is leaving. They are clearly admitting that he is replaceable. How far down the organizational chart is this guy? He doesn't even manage a group of people does he? If he is such a threat to Microsoft that he might seriously damage their business by going to work for their competitor then clearly they see his skill set as extremely valuable and should pay him for the time they are making him sit out of the workforce in his field. The fact that he could sling burgers doesn't matter. The issue is the restriction of trade by Microsoft on the employee.
Positional salary is not enough to warrant barring him from his field of work. If a company is so threatened by a VP leaving that they give them a parachute/exit package to make sure they go to another field, then they can do the exact same thing for this guy.
I would love to see this case fought and over turned. The more cases a judge has over turned the worse the judge looks and the harder it becomes for the judge to stay on the bench. Ruling in such a harsh fashion in favor of the corporation is such crap. In my opinion she basically gave the employee a legal bitch slap. The US legal system and Constitution is all about protecting the minority and the little guy and this judge could use a good legal smack of an over-turned case to remind her of that. Microsoft may make the argument that every software company is their competitor, so none of their employees should be allowed to work for any software for 1-2 years.
That right there is complete crap, and is more of illegal monopolistic attitudes that Microsoft got smacked down for by the DOJ. Microsoft needed to have their corporate back broken in half by the DOJ as punishment, rather than the light tap on the wrist that they got. Microsoft did significant damage as well as long term damage to the computer industry and they should have had to pay dearly for it. Microsoft didn't become a monopoly by playing fair and having the best products. If you believe that you need to read some of the history of the computer industry. Microsoft isn't as bad as it was in the past, but they still show those attitudes and ideals most of the time. I would have broken the company up in to 3 groups, OS group, Application Group, and Hardware Group, with the highest rate/price they can charge other companies, being what they charge each other for products and services. If you don't put a limit like that in place they will just sell to each other ar dirt cheap rates and effectively be one company again.
... some rogue moderator has more or less moderated down all my posts from yesterday.
This sucks.
Cost free eBook I read (by iBook/Kobo/Amazon/ObookO/Gutenberg etc.): "The Green Odyssey" by Philip Jose Farmer.