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Comment by tdicola | Hacker News Reader

I've been fortunate enough to have an employer with no non-compete, but in the past with my first job out of college I just signed everything and was under one for a year after leaving. My thought process now is that a non-compete is just another thing to negotiate during the hiring process. I'm happy to sign one but I will absolutely require that I'm compensated at least for a year of salary, benefits, etc. while under the non-compete. It's only fair that if you're asking me not to work for a year that I can actually sustain myself and my family. Employers are just coasting off the fact that people will sign these things and ask for nothing in return--once people realize it's negotiable (even if you just plain walk from that job opportunity to something else) employers will have a much tougher time with them IMHO.

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Yeah, so it would in a lot of ways be ideal if people could reasonably read, understand, and negotiate the contracts they sign, and then be reasonably bound by those contracts. So each person could say something like, "Sure, I'll sign a non-compete. For an extra $15,000 per year." And then the company could decide if that's worth it to them.

In practice, people just sign what's in front of them, and indeed even if they want to read and understand everything, they can't without a fair amount of training -- and the existence of lots of other people who will just sign what's in front them means that it's hard to negotiate based on what you're signing even if you do read and understand it.

(Digression: I bought a house. The amount of paperwork that I signed without reading was probably around 100 pages. This is a crazy way to live.)

This feels like a problem that is getting amenable to a technological solution. It's pretty easy to imagine a digital assistant that could understand common contract phrasing and even do things like say to a person, "This offer includes a non-compete clause. Based on your demographics and the position, signing a non-compete clause will cost you approximately $X per year. Would you like to negotiate for +$X per year? Y/N" The problem, it seems to me, would be to get buy-in to the idea that such digital assistants should exist and that companies would have to accommodate such assistants.

I signed mine with my new hire paperwork. I had just flown across the country to take the job. Am I supposed to say no when my family had just spent a ton of money to move?

Shady when companies do this, IMO

Bring it up in the interview process, particularly when talking to HR, etc. You don't have to make a stand right there but at least find out what's typically in an employment contract (a very reasonable question to ask even in an early interview). Then later on when they're trying to close the deal make it a negotiable thing just like salary, etc.

Lesson learned on my part, for sure.

I asked about something similar at the offer stage: invention disclosure and assignment. I asked several times and the recruiting team told me that "everything I needed was on the website [where the job offer and the related terms were]." I even asked "No, I mean the forms you'd ask me to sign upon accepting the offer when I'm hired." Still nothing.

Sure enough, as soon as I accept the offer I'm presented with exactly what I was looking for on that very same website.

Somehow I think "never attribute to malice ..." doesn't apply to corporations.

> Somehow I think "never attribute to malice ..." doesn't apply to corporations.

Indeed. Refusing to disclose terms until you've started the job is abundant evidence of them being employee-hostile and manipulative.

Why didn't you tell them that you wouldn't take the job if they couldn't present you with the paperwork that they would be requiring you to sign?

And if they presented extra paperwork later, why wouldn't you hold them to that?

Perhaps I should have. I was assuaged by the fact that they provided specific "exceptions from copyright" (e.g. open source projects that I have and will continue to contribute to).

I can't speak for this case, but the answer is often "you found out after you travelled across the country and turned down other job offers, and may be waiting for repayment of moving expenses".

Yes, a person could try to get this sort of thing in writing and sue for damages incurred, but they'd still be unemployed and loaded with expenses in the meantime. There's a lot of freedom to push this kind of thing because there's too much legal overhead to fight it.

Isn't it customary to sign contracts etc before moving? I have never even quit a job before having all the paperwork finalized for the new place.

This is really important for people to understand. It's insane to agree to work for someone without at least seeing the contract. To put is a bit more clearly, compensation is also part of the contract. Would anyone accept a job without knowing what the compensation is? I suppose if you are desperate...

Personally, I love most non-competes. They give you leverage in salary negotiation. While the non-compete might be non-negotiable, your salary is. Or a signing bonus. Or a parachute. If someone wanted me to sign a 1 year non-compete it would be expensive -- enough to allow me to write free software for that time. But if they are willing to pay, I would be extremely happy to sign.

The key is what to do when people aren't willing to pay. You have to evaluate your situation. As they say "beggers can't be choosers". Try not to get in the "beggers" situation, but be realistic. If you need the job now, sometimes that's what you have to do. Just make sure to set aside enough cash to carry you through the non-compete.

As a side note, my current benefactor demands neither a non-compete nor an inventions agreement. They encourage me to write free software and even allow me to free up things I write at work. They don't complain when I hole up for a week to really understand the technology we are using. I give them a pretty big discount over what I would demand from someone who didn't give me these things. I think it's important to communicate what I value. I sometimes read advice for salary negotiation as "take what you can get and give nothing back because that's how you'll be treated". I hate that.

At will employment. The new contract can be dropped off at your desk this afternoon for any reason. You can quit, or argue (aka fired for argumentativeness), or refuse to sign (fired for insubordination).

It is highly confrontational for a company to do this. The company is stating its willing to ruin your life over nothing, literally nothing, just for the sadistic joy of it, so you better be able to ruin the company as best you can, to keep up.

And a company with this practice is going to have a hard time hiring anyone who can find a job elsewhere.

Still leads to a bunch of people getting screwed. Even if those people aren't good engineers, they still don't deserve to be fucked by the company.

That's true of course. I was just remarking that baiting with a reasonable contract and then switching to a bad one looks, from an employee standpoint, much much worse than originally being offered a bad contract.

I seriously research any job or contract or freelance offer before I take it, and things like this don't hide.

It's pretty much the same issue, though. If you are desperate for a job, then of course sign whatever you need to. But if you're not, don't sign.

One fairly large company I worked with tried to pull this nonsense on me. HR sent me a new contract to sign (which had unfavourable terms). I told them that I was already under contract and unless they were terminating my contract, I was not going to sign another one. They told me that I would be fired if I didn't sign it. So I marched down to the legal department and said, "HR tells me I will be fired if I don't sign this contract. Is that really what you want to do". Half an hour later I had an apology from HR. At least in Canada (where I worked) forcing someone to sign a contract under duress (being threatened with losing one's job) makes it not a contract. Legal knew very well that this was leading to lawsuit that they would lose and made the right choice.

I'm not saying it will always work. I was once sued by an employer for breach of contract when I left despite following the terms of the contract perfectly. Some people/companies are just nasty. I was lucky in that my new employer had thousands of lawyers on staff and threw a couple their way, making my problem disappear.

You need to understand your position. Things are not always fair. You will not win every battle. However, it is a good idea to avoid these kinds of things from the beginning if you can. Not every company is run like this. Vote with your feet. Work for companies that have good policies. And when you find one and you feel you can trust management, do what you can to stay there and make it successful. Good companies exist.

> This feels like a problem that is getting amenable to a technological solution.

While it's certainly possible to apply some technology to this solution, it actually amazes me that people don't spend more time reading and negotiating these.

If you're an engineer, your employment contract is worth literally hundreds of thousands of dollars. The idea that you wouldn't at least read and understand the whole thing yourself (and seek professional counsel if necessary) is ludicrous and a terrible way to live.

One sneaky thing which companies do is only giving you paperwork (including a non-compete) on your first day of work. During negotiation, I always insist on seeing a copy of what I'll be asked to sign before agreeing to take the job. Anyone who refuses this is trying to pull something over on you.

>If you're an engineer, your employment contract is worth literally hundreds of thousands of dollars.

I am an engineer. I don't have an employment contract, I have a piece of paper that has my salary and says I'm an at will employee. Ive never had anything else, literally every job - salary and "you are at will". Benefits have changed all the time with no notice. What kind of contacts are you guys getting?

I meant "employment contract" in the sense of the dozens of pages of legal documentation you'll typically sign, including stock agreements, non-competes, etc.

Never signed anything other than the aforementioned piece of paper (2 sentences) and a NDA. Unless you work for a start up with 5 employees and no HR the HR Dept has its set benefits and forms you must sign, those are not negotiable, only salary is. Typically you are in a standard benefits group depending on the date you were hired and if you are full time or part time. Example: benefits group 3, everyone in that group has the same benefits, you surely aren't going to negotiate special treatment.

> I bought a house. The amount of paperwork that I signed without reading was probably around 100 pages.

I bought a house and read every single one of those pages. No change possible--walking was only alternative. Was in too deep and didn't want to lose the house, the earnest money and my time. I understand the note and deed, but didn't get any other benefit.

In EULA-like situations where you "can't" negotiate the contract, it's not clear to me whether reading it is a good move, game-theoretically.

Yeah, exactly this. I read my first contract ever really closely, saw it had a bunch of potentially onerous terms, then signed it anyway because I had no negotiating leverage and it effectively quadrupled my income.

What I've heard from a lot of WA devs is "yeah, if it looks like it's going to be a problem, I'll just move to California." It's nice that option exists, but it's kind of silly that "defensive relocation" is something people even have to consider.

"yeah, if it looks like it's going to be a problem, I'll just move to California."

I don't think this works. You'll still get sued in Washington.

How does that work if you sign a non-compete for a job in california with a company registered in delaware?

Yeah, no, not at all. Or actually, it's not that simple. Many non-competes are specific to a region in the hopes of making them less likely to be ruled overly broad. Furthermore, if you work and live in California, the WA court can be found not to have standing, and the company can't bring suit in California because pretty much all non-completes are considered void there.

I still think it is nice to know what you have agreed to. But I hear you.

That isn't really a solution, because most employees are ignorant or don't care about noncompetes.

If you don't sign the noncompete, the company very well might recind your job offer.

The REAL solution is when you leave a company, you just completely ignore the non-compete, and do whatever the hell you want.

It is enormously risky for a company to go after former employees, especially engineers.

It costs time, money, and for all they know, the former employee saved a bunch of passwords and is crazy, and will cause a million dollars in damages.

If you break a non-compete, the chances of someone actually going after you is exceedingly slim, due to how dangerous you COULD be if you wanted.

Any reasonably sized company is going to have the dollars and IT smarts to not worry about former employees causing damage (passwords, keycard access, etc. are all immediately cut off on the day of leaving.. and any actual damage someone does is grounds for a likely felony-level criminal case with years behind bars). As others have mentioned they don't even need to take people to court to enforce a non-compete--just the fact that a former employee is under a non-compete is enough to scare away and stop potential new employers (read the comments on this page to see examples of this). By making the non-compete something the company has to pay for it pushes it more into the realm of only applying to people that absolutely need it (high level executives, critical engineers, etc.) and who will be compensated while under it.

How about IP being leaked? EX: saving all your code on a flashdrive on the 1 day that you work from home.

Sometimes crazy people do stupid things.

Obviously you should never actually do something like that, but from the companies perspective, an X% chance of millions in damages is a stupid risk to take, for little benefit.

>Any reasonably sized company is going to have the dollars and IT smarts to not worry about former employees causing damage (passwords, keycard access, etc. are all immediately cut off on the day of leaving..

At least on the sysadmin side? The only way to be sure that someone who once had root on your server no longer has root on that server is to wipe and re-install using scripts that person didn't develop/sources that person didn't control. Of course, you kill the logins, but there are a million ways to leave a hard to detect backdoor... and many of those are impossible to distinguish from a simple mistake.

This is definitely something you need to worry about; and at the very minimum, you go out of your way to make sure you don't piss off ex employees more than you have to.

Yes, yes, if you have your whole process in source control, that's great, and will really help when trying to track down who put in the back door (However, can you prove it was a backdoor and not just, you know, a dumb mistake that left a security hole open? Innocent mistakes of this type are pretty common.) - even then, what of the sysadmins who have root on your revision control server? (this is actually an area where smaller shops, which tend to just use git, have an advantage; it's way harder for the repo owner to insert something without anyone noticing on a git system, say, than a more centralized setup like perforce, which tends to get used by the much larger companies.)

For that mater, even the ground-pounding so-called "rebooter monkeys" have a lot more power than you think. Anyone who has root on your workstation, even for a short period of time, can cause all sorts of mayhem, and worse, make it look like you did it, for some time to come.

>and any actual damage someone does is grounds for a likely felony-level criminal case with years behind bars).

I mean, I'm not saying you couldn't make things pretty miserable for the perpetrator, you could. but that doesn't really help the business that was harmed. It does provide a pretty good deterrent. but that's why the comment you are responding to was talking about "crazy" - there are people who do things that are not in their long term best interest, and if those people have root on your systems, or access to your codebase, they can do more damage to you than you can possibly hope to recover from them. It's a pretty rare sysadmin who couldn't do millions of dollars in damage to his or her employer; and a pretty rare sysadmin who has the assets/insurance to cover a judgment that large.

Sure, go ahead, if that works for you. But:

- It is risky for the employee. Just how risky depends on a ton of factors like the company they're leaving, the company they're joining, what skills they have/who they are, perceived scarcity of talent, and probably how litigious managers feel that week/the phase of the moon. Most employees have far fewer lawyers and less money than, e.g., Amazon. If they come at you, odds are pretty good that even if you win, you lose.

- It is risky for your new employer. Just how risky depends on ... (see above). If you (employee coming in under an NDA) don't tell them about , you are being unethical and probably breaking your employment contract, and that sort of thing at the very least looks really bad. If you do, well, at the very least, you are making the hiring decision harder. There are companies that won't mind a lawsuit for a high-value hire; perhaps you even are one. But certainly, the risk of a lawsuit over a newhire is going to make the company think about it.

Oh, and if you're thinking about causing "a million dollars in damages" with passwords you shouldn't have retained because you're pissed about a noncompete, um. If you're interested in working anywhere with responsibilities more interesting that "take out that trash and dump it in the dumpster", I hope you think twice.

My bottom line on this way of thinking: it probably would have been more appealing when I was in my early 20s when I had a lot less to lose and knew a lot less about the legal system.

Obviously you should never actually do something like vindictively break the law and cause millions in damages. That would be illegal and hugely immoral.

But sometimes crazy and/or angry people do stupid things. The company doesn't 'really' know if you are secretly crazy or willing to risk jail for spite. Use that to your advantage.

An X% chance of losing millions is a stupid risk to take for little benefit.

The company has a significant incentive to not needlessly piss off former employees purely from an expected value perspective.

From where I'm from (Eastern Europe) the law mandates that the non-compete clauses are only enforcable when appropriate compensation was being paid during employement period (must be labeled as such). Since most employers (even those with non-compete clauses in hiring contracts) don't follow this, in practice virtually all non-competes fail if/when challenged.

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