September 6, 2008 at 11:27 am
Comments posted to this topic are about the item No Non-Competes
September 8, 2008 at 6:35 am
Steve,
I agree with your perspective. Non-competes are legitimate in some cases and not in others. Unfortunately, the legal system tends to look for overarching principles so that the law can be objective. This can be good news and bad news. In this case, the law is looking at the fact that we scorn the concept of slavery or anything that smacks of it. Telling you that you can't leave whenever you want and work wherever you wish looks like slavery to legal minds. That's good news for workers. It's bad news for employers who have developed proprietary knowledge essential for a business advantage over their competitors. Sometimes the lowest level line worker knows enough after working for such an employer to destroy that advantage if they move to another employer in the same field and share what they know.
Advice to employers: This is one more reason to develop a good relationship with your employees. Treat them well and give them a good reason to be loyal to you. Being generous with your workers can be more effective than reams of incomprehensible legal documents!
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“Politicians are like diapers. They both need changing regularly and for the same reason.”
September 8, 2008 at 6:54 am
I have to say, I love the out-takes. Sorry, but I do laugh. 🙂
As to the non-competes, they are clearly necessary with some positions or there would be some serious stealing of knowledge going on in the industry today. Unfotunately one of the downfalls of a success driven country. It has to be the responsibility of the person taking the job and signing the agreement to make sure that their best interests are covered because the company is doing that too. Just responsible business IMHO.
David
@SQLTentmaker“He is no fool who gives what he cannot keep to gain that which he cannot lose” - Jim Elliot
September 8, 2008 at 7:24 am
I lost a job because of a non-compete clause. The only good to come out of it was to show that my would-be employer had principles. I think they really only hurt employees. When everyone was using the same software product (Amdocs telecommunications billing) and Amdocs itself would copy one customer's software to create another (anyone shocked?) why one headhunter would make a contractor desperate for work say that if they (the headhunter) can't or won't find them more work after the contract ended then no one else can is patently unfair.
September 8, 2008 at 7:26 am
I have friends who think that outtakes are the editorials!
You and my kids like those the best.:hehe:
September 8, 2008 at 10:03 am
I used to work for a consulting company and the non-compete clause we signed specifically said we couldn't work for a client that we were consulting for unless we (personnally not corporately) had done no work for them for 6 months. I thought this was fair. It was to try and stop poaching. On the other hand I had a friend working at a different consulting company and they were not allowed to accept a job for any of the company's clients (over 2000) for 1 year after leaving. This seemed a lttle onerous. It turns out my friend's company bought our company for some specific business we had in another location and then 1 year later shut down our office putting all of us out of work. I accepted a job with one of their clients since I certainly didn't feel bound by the new non-compete. I had never done any work for this client so I felt the non-compete was simply unfair. No one said anything or persued any legal course. Non-competes might have a value under certain circumstances but its wrong to use them to try and keep employees from seeking other employment. Under most circumstances it is wrong to lay off employees and them tell them they can't work in the same field.
Francis
September 8, 2008 at 10:07 am
There is the opposite side of the coin as well: non-solicitation agreements. I was not party to the non-solicitation agreements among corporations, whereas I semi-voluntarily signed a non-compete as a condition of employment.
It makes sense to me that a company might have a non-solicitation agreement where there is day-to-day contact; however, I lost a job opportunity because their legal department discovered a non-solicitation with my then-employer. I had no business relationship or contact with the prospective company, and they did not solicit me--I solicited them for a posted job, but because my then-employer was in healthcare, there was a non-solicitation with almost every imaginable healthcare provider, hospitals and insurance companies.
Quite frankly, I thought it in violation of anti-trust laws but would have had neither the time nor resources to pursue it, even though the extent of the agreements were clearly in restraint of trade and impaired my ability to find alternative employment.
My conclusion is that there should be clearer guidelines for corporations on what is and what is not acceptable protection of their investment in their current employees.
September 8, 2008 at 10:11 am
A year? Totally excessive.
I did one bout of contract development for The State (Dept of Education, cool gig writing an export process transferring data to the No Child Left Behind program), if I recall correctly the contract was that I couldn't work for DOE for one year, so the contracting company got at least a year out of me. There may have been other back door considerations that I was not involved in. The restriction wasn't a problem because I moved to New Mexico while working for them and telecommuted to finish the project.
Very cool gig. I may not agree with Bush's education policy, but it did give me a year of employment. 😀
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[font="Arial"]Knowledge is of two kinds. We know a subject ourselves or we know where we can find information upon it. --Samuel Johnson[/font]
September 8, 2008 at 10:24 am
Steve,
I've been reading your stuff for the last few months and really enjoy making my first task on the day checking out your editorial.
I think things are most litigious in the US than here in the UK, but we generally drag along behind you so I expect we'll be there at some point.
Regarding non-competes, I agree with you and think the only situation that justifies their use is in the area of trade secrets: Anything else is just skill and experience and to prevent someone from taking advantage of their own talent and hard work would be very unfair.
In my own career, such as it is and has been, I've generally ignored parts of contracts that I didn't like. My belief is that if you keep to the spirit of the contract then you probably won't irritate anyone and they'll normally leave you alone.
Keep up the good work!
Adam
September 8, 2008 at 10:28 am
I agree that non-compete agreement should not be measured against knowledge/skills, but unfortunately it would be very hard to be sure that the same/similar technology wasn't being used. After all, many of the best-kept algorithms and routines are forged through honing that same knowledge/skill-set, and would inevitably end up working their way into future work in the field.
September 8, 2008 at 11:38 am
Thanks!
September 8, 2008 at 11:44 am
Interestingly enough, most of the "non-enforceable" non-compete agreements are too vague and essentially lock someone out of doing work in their primary area of expertise. That's the main reason why so many of them get struck down: you can try to limit any damage someone might do when they leave, but you cannot prevent them from earning a living.
In that sense - I'd be really surprised if that second non-compete would stand up to the test. No writing of any kind for a long while smacks of much too general.
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Your lack of planning does not constitute an emergency on my part...unless you're my manager...or a director and above...or a really loud-spoken end-user..All right - what was my emergency again?
September 8, 2008 at 12:01 pm
ah, indeed, the relativity of the "it depends" is the inherent trait that will always allow for dependance on the legal business...
Opps,, that's right,,, "they" are those that wrote all the stock NC's and variations ad infinitum !
In the end, I think a genuine, fair-trade existence would be happiness !
Rick
September 8, 2008 at 3:49 pm
From a purely capitalist perspective, non-competes are anachronistic. They have no business in business. If everyone who works for a company thinks that they have the secret to the coke formula, I think they are delusional. The only reason non-competes are even in vogue is to thwart competition, not legitimate protection of intellectual property. If a company is tied to an employee's skill, then it's their risk that they have taken. I don't see any moral justification of spreading that risk to current and future employees.
If on the other hand, the protection is legitimate, like the coke formula, then employers should take specific measures, inducements, awards, etc., to keep the right employees from transferring such knowledge. Instead of blanket non-compete for every employee, at the time of termination, enter into an agreement with specific employees to ensure protection without hurting the employee's ability to sell their skills or services.
In that regard, the California courts decision against non competes is a welcome development.
September 8, 2008 at 3:57 pm
There are very few secrets. Is SQL Server doing something that Oracle can't? Hardly.
I heard Jason Fried of 37 Signals speak last week. He talked about how often they blog and how transparent they are. They try to share everything. As he said, we don't do anything amazing or worth keeping secret. He asked everyone to share more.
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