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Comment by cmdkeen | Hacker News Reader

The UK's approach is generally to have "gardening leave" - if you want to be able to ensure I can't work for a competitor for 6 months after leaving you agree to pay me my full salary for 6 months after I leave in return for me not working anywhere else. It's fairly common in the client facing world of finance for instance to stop someone walking off with all of their clients to a new firm. For me at least it seems a fairly sensible compromise - 6 months in that example is really at the top end of the spectrum, usually it is 1-3 months. That's plenty of time to have a holiday, learn some new skills and arrive at your new job refreshed and ready to go.

The length and scope of UK non-competes is fairly heavily restricted by the courts and the onus is on the employer to justify the business need. An example like in the article would be unthinkable.

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Non competes in Canada are also enforced very selectively. The standard legal advice is to structure the agreement such as it still stands (severability) even if specific parts of it are struck down because of how likely that is.

For non compete to work, the affected person has to have specific knowledge to protect (usually client accounts) and the restriction needs to be narrow to specific industry ("software" is not good enough, "Point of Sales software for Bars and Restaurants" probably is), duration needs to be only as short as it needs to be and geographically bounded.

The only time broad non-compete really hold up is for things like sales of a business where the founders are barred from immediately competing with the company they just sold.

It should be noted that in the U.S., there are really 50 individual jurisdictions. Contract law is a state matter. Some states may be better or worse at upholding non-competes. California in particular is known for disregarding non-competes.

Also, many non-competes go totally unenforced. It's rare that a suit over a non-compete is actually filed for low-level employees. In the linked article, the writer wasn't fired because her old company sued her for competing, she was fired simply because the new company found out she had signed a non-compete and presumably wanted to avoid any potential lawsuit-related shenanigans. It's also possible that the company is trying to establish a precedent for voluntary, pro-active enforcement of competitors' non-competes within the industry specifically because they know the courts are unlikely to uphold them. If all the employers just agree not to hire someone who worked at a competitor within the last 2 years, then they don't need to worry about what the court thinks (though they may have to face the DOJ in a wage-fixing scandal, like the computer animation industry has).

I've seen a couple cases of non-competes being enforced by small companies as retaliation for an employee leaving. I've never seen it holding up in court but frankly neither instance was very rational. They were someone taking someone else quitting very personally.

In the linked article, the writer wasn't fired because her old company sued her for competing, she was fired simply because the new company found out she had signed a non-compete and presumably wanted to avoid any potential lawsuit-related shenanigans.

Unfortunately, this isn't quite accurate, as shown by the Q&A at the end of the article. Although her previous employer didn't directly sue her, it essentially threatened to sue her. Moreover, the way her new employer found out about her previous non-compete agreement was because her old employer specifically notified them and indicated that she had confidential information. Her new company basically had no choice but to fire her.

How does your statement differ from the parent statement? And yes her new company had a choice, they could have kept her and dealt with the court issue if it came up.

I didn't say the quoted section was false, I just said it was inaccurate because it gives an inaccurate impression of what was happening in the original article. Without reading the article, you might think that she was fired due to the 'chilling effects' of non-competes. However, in this case, the threat was more tangible. Her new company didn't just find out about the non-compete 'through the grape vine', they found out because the previous company forcefully notified them. This gives a much greater indication of intent to sue then if the prior company had kept quiet about it, as they apparently did for most other employees. Remember, it was apparently a well-known fact that employees from her firm occasionally moved to 'competing' firms. This was why she wasn't initially worried about the non-compete in the first place, because she didn't think they would enforce it. Reuters probably got rattled once they saw that Law360 was serious about the non-compete.

Technically, Reuters could have gone to court on her behalf but why bother unless she was some highly sought-after journalist? Intimidating letters are meant to make you weigh your choices carefully. Also, while Law360 didn't literally sue her, it gave every indication that it intended to if she continued at Reuters.

Even the UK probably differs between England and Scotland, and the EU is 27 further jurisdictions. It's different everywhere.

But common sense applies everywhere; if you don't understand it don't sign it, if you don't want to be held by it then don't sign it, if you promise never to enforce it then just take it out of the contract.

> The standard legal advice is to structure the agreement such as it still stands (severability) even if specific parts of it are struck down because of how likely that is.

I don't know about Canada but in the US this is standard for any contract of any type. The vast majority of contracts I've signed have specific clauses to that effect as well.

Well, you're assuming that it makes it to court.

Based on personal experience with this in Canada -- there's significant expense and stress involved when you're on the receiving end of a lawsuit from a former employer who had deep pockets and an ax to grind. This is even more true if you've got a mortgage and family.

Even when you're in the right, you're more likely to take the least expensive route to make the suit go away than to fight to the finish.

In Denmark if the company you're leaving wants to uphold the non compete, they're obliged to pay half of your salary for the duration of the clause.

FWIW I've been under non compete, and a couple of other clauses in all of my previous jobs, but they were never enforced. The legal power of non compete in Denmark is from my observations very weak. So much so, that an employer of mine vaived all clauses after a while since it was a bigger hindrance when hiring people than benefit when people left.

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