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Comment by munk-a | Hacker News Reader

One of the most insidious portions of non-competes IMO is that they are often non-enforceable. Depending on how wide or restricted the target of the non-compete is it can be ruled invalid. A lot of the more questioning people have probably discovered this but consider that there are probably janitors laid off by amazon who read their non-competes as the word of law and end up suffering hardships because of it.

Also, as an aside, a non-compete is not required to prevent corporate espionage, it's just easier to prove violation of. A lot of the sales teams worried about losing leads when team members departed could have pursued them with law suits focusing on the theft of corporate resources, it's regrettable non-competes have even gotten this far.

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From the perspective of any normal employee, "non-enforceable" doesn't matter. That I can eventually win in court doesn't matter if I can't afford the time, money, and stress to get that ruling.

Exactly the goal, I'm sure, of the people writing up these agreements.

From the perspective of the normal employee they should understand they pretty much won't be enforced. The threat will be made. And then no follow up.

In most cases, yes, it is an empty threat. However, the possibility is there. The company (or, individuals in the company who dislike you) can selectively use it against you to make your life harder. Or, if you whistleblow, they can use it to retaliate.

A curious parallel to this is a lot of company's "no reference" policies. Due to the fact that a negative reference can have legal ramifications in a lot of jurisdictions a number of companies have adopted a policy where they publicly state that no reference will be given to leaving employees. I've known several companies like this that will then inform employees that are leaving privately that they'll be happy to give them a positive reference.

Some parts of society can be really weird and distorting and I have no idea how we'd go about solving them.

I've always given individuals as references, not companies. Not sure the degree to which anyone's ever checked.

I have always given specific individuals as references as well. The companies I was referencing were ones where the management had a policy of agreeing not to give references.

Again this is super weird because the only thing that is an issue is giving a negative reference so a lack of a positive reference could be interpreted as a negative reference... thus, not giving everyone a positive reference should be a similar issue.

That entire law is sort of silly in most cases though, but the cases where it isn't (ex. a malicious boss for stupid reasons) are serious enough that I understand why it's around while being sad that we need it.

I've always expected company references would be in the vein of "Yeah, they worked here those dates," i.e. they didn't just make shit up on their resume. The idea that companies (as opposed to individuals speaking on their own behalf) would provide more than that seems pretty archaic outside, possibly, of cases of serious misconduct. Which I suppose is mostly where the question comes up.

Good luck suing, if you would get a negative reference, why are you using them as a reference, that shows an incredible lack of awareness.

Companies are just copping out with hyper sensitive HR departments. I would give a glowing review but I am not afraid of detailing why someone else is an idiot and we canned him/her. I would even go so far as saying "you're making a mistake if you hire this person". I won't be sued, that fear just simply doesn't reflect reality.

Maybe. Or maybe they're willing to go to court, make you get a lawyer, drag you through discovery, depose you, set a court date to force you to prep for trial, and then offer to settle at the last minute.

For a large company, that's a small amount of money and a modest amount of time. For the normal employee, it's a lot of unexpected expense, a great deal of stress for months, and the risk of owing a shit-ton of money at the end of it.

If you really think there's no risk to ignoring non-competes, presumably you should be willing to guarantee the legal expenses for someone who wants to try. But my guess is that you won't offer.

Sure. But it a company wants to sue you just for the hell of it, then whether or not you signed a non-compete is irrelevant. Maybe you negotiated this out of your contract, but they decide to sue you anyway.

The better solution to all of this is not to "ignore" the non compete risk, it is instead be to simply lie to your former employer.

What are they going to do? Hire a private investigator to track down all ex employees, to see if they have another job? Probably not.

It is pretty easy to get away with this stuff if an employee really feels like it.

The notion is not that you get sued for the hell of it. It's that you get sued for commercial advantage. You get sued to make an example of somebody, so that all the employees know they'll ruin somebody if they find out they're working for a competitor.

That somebody has decent odds of getting away with something is only relevant if the punishment not terrible. But a 95% chance of not getting sued is not great if when you are sued it's $100k in expenses and two years of incredible stress.

Will some people do it anyhow? Sure. But most people won't, and that's what bullshit noncompetes are after.

I've known a few people who were pursued for NCs, I think you'd be surprised, it happens more frequently then you think.

If its not justiciable you can just ignore them

And they can just sue you anyway.

Yes, exactly. My first lawyer explained it well: "The question isn't whether you'll win. It's whether you can afford to win."

Land of the free

This is the case everywhere including the most developed EU countries. Justice machine is rusted and wins the one who oils it with money.

It should be "Land of the Free"

- terms and conditions apply

Yes, but if there is any question, keep a really low profile. I know people who directly violated crazy non-competes and took jobs with direct competitors basically working the same position.

Skip the usual conferences for a year or two, fail to update linked-in in any meaningful way. Keep your mouth closed, and it becomes really hard for a company to toss cease and desist letters if they aren't even sure where your working. Going dark may not be a perfect defense, but lack of evidence makes it a lot harder.

The problem with things being non-enforceable is that they're often enforced anyway, with intimidation and legal actions that are more relatively costly for the individual than the company.

Non-competes are illegal for physicians in my state, but I know of a case in which the clinic dragged the case out so much with various technicalities that eventually the Dr. settled. Now, in a subsequent case with a different defendant, lawyers are refusing to take the case for that reason. So the doctor in question is waiting for the non-compete to expire before retrying opening a private practice anywhere near their home again.

It's not enforceable legally, but they're doing so via other means.

And they have a chilling effect even when they're probably not going to be invoked or are unenforceable. I worked for a very small consulting firm for a number of years and we passed on pretty much anyone who had a non-compete. Management wasn't willing to take even a relatively small risk that we might get involved in a lawsuit.

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