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Comment by _red | Hacker News Reader

Just as a footnote. The vast majority (90+%) of Non-Competes are basically boilerplate that are unenforceable in most circumstances. Most businesses include them as an "optical deterrent" to prevent employees from quitting and jumping ship, only a fraction of them are enforceable.

Courts have routinely taken the position that "an employment contract cannot be used to deny a worker from his livelihood in the ordinary course of business".

The NC which are enforceable are generally very specific and usually cover things like trade secrets or proprietary data (ie. secret formulas, customer list, etc).

So you leaving your current job to work at another mechanic shop is entirely unenforceable, whereas you downloading the entire customer DB and shopping yourself around to other shops (with data in-hand) probably is enforceable.

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^^^^^^^^^^^^^^^^ Some of this might be correct in _red's jurisdiction but every assertion is incorrect in my state. Who knows about your jurisdiction? IAAL but IANYL

Yes, it does vary by state. Of course what I wrote shouldn't be taken as any sort of legal advice, it was water-cooler talk only.

Here is a handy chart that describes each states approach to the issue (note: the majority match up with what I wrote)

https://www.faircompetitionlaw.com/wp-content/uploads/2018/0...

It's still concerning, because supposedly non-functional crap can still affect our legal system. Like how the court-reporter's unofficial headnote for Santa Clara County v. Southern Pacific Railroad Co. became important for the doctrine of corporate-personhood.

Much like DNA, if you leave something around there's a chance a mutation might activate it.

the contract might not be literally enforceable by the courts, but the real threat of costly litigation can both intimidate employees and companies that might hire them.

Exactly. As my first lawyer explained to me long ago, the important question isn't, "Will I win?" It's, "Can I afford to win?"

If I'm 95% likely to win but it will cost me $100k and two years of stress to find out, then I'm going to have to care a lot.

If a large company is known to be litigious with respect to non-competes, it almost doesn't matter if they rarely get judgments in their favor. The rational thing for an individual leaving that company is to either find a job that doesn't violate the non-compete or wait out the length of the non-compete.

OR create a class action of other harmed parties. People always seem to forget "organized labor" as an option these days, and that's basically the posthumous version.

Well, except class actions are slowly getting phased out in favor of forced arbitration.

I still cannot believe that forced binding arbitration is a legal thing. It's like a "If a law to stop us exists, this ULA is above the law" clause.

>Courts have routinely taken the position that "an employment contract cannot be used to deny a worker from his livelihood in the ordinary course of business".

OTOH, I've worked in and am pretty familiar with a particular branch of market research/consulting firms in the IT industry. I've been told directly by employees and ex-employees of a couple of the largest firms that people who leave to start their own practices or go to competitors are routinely kept from doing so. I personally know people who have basically hung out "on the beach" for a year for this reason.

So, in that case, those people basically couldn't go to another firm and do the same thing as they had been doing.

They actually legally couldn't? Or they merely believed they couldn't? Big difference.

I've been told that they had taken people to court and won. And, if it gets to the point that you're going to have to hire an expensive lawyer to fight a big company with uncertain prospects, I think I'd just take a year off at that point (or take a job that wouldn't be subject to the non-compete).

ADDED: Although I actually agree that, for the most part, the harm of non-competes is in the chilling effects for both workers and potential employers because no one wants the uncertainty and risk. And there are enough lawsuits in many locales to give credibility to non-compete enforceability.

> So you leaving your current job to work at another mechanic shop is entirely unenforceable

And are you willing to go to court and spend years and thousands upon thousands of dollars to not have that enforced against you?

Well, that's only a problem if the employer decides to go after you. And in the vast majority of cases they won't. They likely won't even know where your new workplace is.

Yes, they could file a frivolous lawsuit against you, but this is true no matter what is or isn't in your contract.

They have to sue YOU for breach of contract damaging their reputation with the rest of their workforce, discouraging future hires, spending money on expensive lawyers, potentially waiting years for resolution. If their case is frivolous as it likely is you could do tens of hours of research and defend yourself pro se for nothing.

Most people would drop such a suit it seems.

In Taiwan, Foxconn had noncompete for all their employees and in the articles it specifies a sweeping list of fields that are prohibited for the said employee to enter after leaving Foxconn.

Foxconn infamously took one of their employees to court for being a taxi driver and the case was quickly dismissed. And recent years all non competes cases in Taiwan are thrown out except for high level managers.

Doesn't this vary by state? I would be wary of giving what looks like legal advice.

oh come on, nobody is going to mistake a comment on the internet for legal advice (or if they do, it'll be a learning experience).

adding "IANAL" has gotten just as out of hand. the vast majority of the population are not lawyers and therefore the vast majority of people on the internet are also not lawyers. so why do you insist on calling this out? to draw an analogy here, it's like lawyers adding non-competes to contracts. maybe we can stop adding IANAL to comments first. enough with the ass covering.

This is my way of doubting that the post is accurate without claiming expertise myself. What do you do?

People are constantly saying things that are wrong about the law. Reminding ourselves of this and being humble about our knowledge (through the use of disclaimers) doesn't seem like a bad thing. Letting confident assertions stand does.

Unenforceable in Court, that is. If you are someone who doesn't have the money to retain an attorney, and you don't have experience with these things, then you very well may believe that it is enforceable, and therefore to you, it is.

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