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Comment by mabbo | Hacker News Reader

There are two kinds of non-competes, and both have problems.

First, there's the really nasty ones saying "If you ever work here, you can't work for any competitor for X years", and they're clearly abusing of employees, labor, etc. I hope there is a straight up ban on that.

The second kind is "You can't compete with us while you work here". And that is a much more complex beast. Obviously, if I work as a developer making a stock trading app, I shouldn't be making a competing stock trading app after hours.

But my employer does everything. There is no field that my employer is not involved in, somehow. You can guess who they are, probably, or just read my profile. And they say "You cannot do anything that competes with anything we do". Which is everything. Want to make a Sudoku app? That's a game, we do games. Want to do some open source ML library work? We do ML, you can't do ML outside of work (I asked legal that one). And that's ignoring the who-knows-how-many secret un-released projects that might relate.

They don't even tell us "no" anymore. They just say "read the non-compete agreement and do what it says". Basically "do what you like, but if we ever feel like it wasn't right, you're fired and maybe sued".

And when I apply to other companies, they ask "do you have a github account?". No, I've been highly motivated not to.

Edit: eesh, this was a bit of a rant, wasn't it? Apologies for that. But maybe folks have ideas on what to do about it, apart from the obvious.

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But my employer does everything. There is no field that my employer is not involved in, somehow. You can guess who they are, probably, or just read my profile. And they say "You cannot do anything that competes with anything we do". Which is everything. Want to make a Sudoku app? That's a game, we do games. Want to do some open source ML library work? We do ML, you can't do ML outside of work (I asked legal that one). And that's ignoring the who-knows-how-many secret un-released projects that might relate.

I'm in a US state that allows non-competes. I recently turned down a job because I wasn't comfortable with the non-compete I was compelled to sign expressly because the company's opinion of its own market was so broad. They implored me to trust that they had "never sued anyone" and "have no intentions to", and I think they honestly believe that. But then why have the non-compete at all?

And even if they are true to their word, what happens when they sell the company to someone else that exploits the leverage the non-compete provides?

A friend of mine was sued by their ex-employer over the violation of a non-compete. He lawyered up and fought it. And he won! But it was a Pyrrhic victory that resulted in a significant expensive of time (the judge granted an injunction that forced him out of business until the case was resolved - which was around 18 months) and money (he was granted no financial judgement). I am convinced the plaintiff's lawyer knew they'd lose, but to the suing party the process was punishment and that became their goal.

His should be a cautionary tale - even if you're advised that the non-compete isn't enforceable, it can still hurt you.

> They implored me to trust that they had "never sued anyone" and "have no intentions to", and I think they honestly believe that. But then why have the non-compete at all?

Exactly. 'That's great; we can resolve that issue easily. Let's just skip the non-compete - you're not using it anyway and I'm not comfortable with it.'

EDIT: A non-lawyer's suggestion (talk to a lawyer before you do this): Skip signing or edit documents (cross out and initial sections you don't like, add words - and initial each change) and then sign and send it back. Don't say a thing; leave it to them to bring it up - most people won't bother disputing it with you.

They are not using it but just imagine that company gets acquired by people who do those kind of things.

Contract with company is not contract with current management only. I don't know who will be there in 2 years in charge.

My current company was acquired by a bigger company like a year ago, fast forward one year - even bigger company is now owner of our parent company.

Not to mention that the person making the assurances -- hiring manager, or even worse, recruiter (who may not even be an employee!) -- is not likely the person who makes the decision to enforce the clause.

Well we have never had to sue anyone because no one has ever actually called our bluff when we send them a threatening demand/cease and desist letter from our lawyers.

So if you decide to call our bluff in the future just know we won’t sue you…because we don’t have to sue, our agreement makes you waive your right to have the case heard by a court in lieu of mediation by a mediator of our choosing, from a mediation company we send all our cases to.

> makes you waive your right to have the case heard by a court in lieu of mediation by a mediator of our choosing

This really should be made explicitly illegal. It should not be possible for an individual to surrender the right to bring a dispute in front of the court.

Who contributes most to politicians - individuals, or corporations and PACs funded by non-listed corps?

And actually, who writes a significant part of new bills, some of which become laws? Yes, corps. It's not surprising then that the legal system has some extra benefits for the corporations.

My offer letter explicitly stated that starting work (and accepting the stated pay) constituted agreeing to all the docs sent over, unless explicitly agreed upon otherwise.

I can't wait to have enough savings to quit and move to california where the employee protections are so much higher.

It's interesting to hear you say that, moments after coming from a thread where people were explaining why California is so terrible.

I feel like the symbol of the 2020s is Chesterton's Fence[1], people chafing against restrictions and then having to reinvent them. I'm sure that some people are indeed fleeing California, and will then immediately start reinventing it.

Not that that's necessarily a bad thing. The reinvention could be like a clean-sheet reimplementation that's better than maintaining a smelly old code base. But that only works if you know all of the reason those code smells are there, and don't simply re-start the same process to recreate the same bugs.

[1] https://wiki.lesswrong.com/wiki/Chesterton%27s_Fence

Maybe we could keep the protections for labor and drop the many additional protections for landowners.

I wonder if that would be necessary. San Francisco is kind of a special case as a small peninsula. That puts limits on the ways it can grow. You could probably build more housing units but you'll rapidly run into limits on streets, utilities, schools, etc.

I don't know how much the issue is with the rest of Silicon Valley. There used to be a lot of undeveloped area not too far from Palo Alto.

Texas may want to avoid the wrong kind of over-dense housing, since they've got plenty of land, though there are also reasons to encourage people not to commute multiple dozens of miles per day.

>I wonder if that would be necessary. San Francisco is kind of a special case as a small peninsula. That puts limits on the ways it can grow. You could probably build more housing units but you'll rapidly run into limits on streets, utilities, schools, etc.

I'm going to push back on this. Manhattan is less than half the size of San Francisco and has nearly four times the population density. The Bronx is roughly the same size and has double the population density. It isn't that San Francisco can't expand, it is that it doesn't want to.

You know what Manhattan has that SF doesn't.

Subways[1].

Sure developers would love to build more chicken coops for tech bros. But they absolutely don't want to kick down coin to pay for the subway system needed to support that density.

[1] Oh yea SF has BART which was built 50 years ago and not expanded since. And the central subway which is 1.7 miles long, not open yet after ten years of construction and 20 years after it got the green light.

I agree, which is my underlying point: they don’t want to expand! The lack of public transit is a problem plenty of people have been yelling about for decades, as you mentioned. Developers, citizens, and the city council have all proven over the years they are unwilling to do what needs to be done to make expansion possible.

The famous legend of NYC is that they had the vision to build infrastructure beyond current needs.

Now, it's trendy to view any investment by democratic government as wasteful, and to reduce the taxes by which the community makes that investment to nothing.

What will happen to future generations, who have us as their forbears rather than the visionary New Yorkers.

There's plenty of investments. It's called suburban sprawl, and some people even think it's a tax ponzi scheme.

2 of the 3 subway systems in NYC were built by private companies.

It was only later that all were merged into one publicly-managed one.

That was also when expansion basically stopped.

> You know what Manhattan has that SF doesn't. Subways.

Well, yes. And deep bedrock and fairly stable geology that makes them possible.

If Japan (earthquakes) and the Netherlands (built on swamp) and Shanghai (swamp) can do it so can San Francisco.

Shitty soil and earthquakes in combination is a bad combo.

https://www.businessinsider.com.au/earthquake-expert-san-fra...

Well and there is also the old Bart tunnel and more modern Central Subway. And then there are the subway tunnels they have built/building in Los Angeles.

Snippets I've read over the years seem to say that subway tunnels and deep foundations don't tend to fail in earthquakes because they to move with the ground around them. And because they are already structurally strong.

Basically the lack of mass transit to support higher density is because of lack of willingness to pay for it. Unwillingness to pay for public infrastructure is due American economic ideology. Not anything specific to San Francisco.

It's perpetually curious to me when people blame CA problems on a lack of upzoning and then ... move to much less dense places with plenty of NIMBYism.

Sure, you're getting away from the problem, but not because anyone there has a solution - just because they haven't been hit by the same problem to the same extent yet, because "sprawl outwards" works for a long time when you have less geographical boundaries.

Those people probably either (or both) of do not understand the nature of the issue(s) and/or are just as happy being somewhere where they won't be issue(s) for a long time as somewhere that's managed to prevent them in perpetuity.

Because you don't need (though it can still be good) upzoning if the population is low and housing cheap.

That doesn’t seem odd to me. People do what’s best for them, and even if they underatand the dysfunction of North American urban planning well they’re not in a position to fix it.

> People do what’s best for them

People have many motives, including themselves, their communities, their businesses, their countries, their co-workers and neighbors, strangers on the street, etc. If they only acted selfishly, there would be no community, country, business, etc.

Perhaps “people need a place to live” would have been a better way to phrase that.

Any solutions to North America’s urban planning woes will take decades, if they happen at all. I don’t fault anyone who can’t wait that long.

What's strange to me is how people, particularly those in California, think that banning non-competes were somehow a California idea or that CA is the only state that does that. Yes banning non-competes is one of the things CA got right. People who complain are concerned about the things it got wrong. The idea that if you want non-competes then you must also accept insane regulatory burdens isn't really tenable when you look at the other states that ban non-competes and don't suffer from the same problems as California. There are low-regulation red states like Montana, Oklahoma, and North Dakota that have the same non-compete bans that CA has and many other states such as Utah and Texas place severe limits on them, whereas there are high-regulation states such as Massachusetts that allow non-competes.

Please don't try to turn the non-compete issue into a california good-or-bad issue because it's just not a california thing.

Note that MA somewhat recently passed legislation that more tightly limits the power of non-compete agreement: https://www.laboremploymentlawblog.com/2018/08/articles/non-...

I didn't know that -- it's good news. From a free market point of view, you obviously don't want to restrain trade, so that is the right-wing justification for bans. The left wing justification would be about increasing the power of labor. For both right and left leaning states, there seems to be an ongoing battle about non-compete agreements, and there is no reason for the pro-compete side to frame this as purely a left or right issue as there are allies to be had on from all sides of the political spectrum.

California is really great in a lot of ways, but the issue that really drives people away from it is cost.

That's a pretty good idea for emailed PDF documents. Typically, I have received a link to a signing service, and editing is not enabled by their UIs of course.

In that case, you simply need to email back before signing with the changes you need made. The company will do that to you if they get something wrong (wrong start date, incorrect pay or bonus percentage), so it is completely reasonable to have a conversation about what adjustments you need made to your contract. The worst they can say is no. And if they say no, that's a sign that you should really think about what you are signing.

A fundamental of negotiations (and human relationships) is not wanting to create problems or appear to be a 'trouble-maker'.

In a recent personal situation, it was obvious serious mistakes were being made and it was obvious what the solution was - painful, but certainly better than the alternative. However, we hadn't yet experienced the consequences, and predictably another other party railed at me for making things unnecessarily complicated.

Employees at businesses don't want to be seen as trouble-makers and have their offers rescinded.

A (manipulative) trick to negotiations is to put the other person in the position of being the trouble-maker.

> EDIT: A non-lawyer's suggestion (talk to a lawyer before you do this): Skip signing or edit documents (cross out and initial sections you don't like, add words - and initial each change) and then sign and send it back. Don't say a thing; leave it to them to bring it up - most people won't bother disputing it with you.

My actual lawyer's advice is that doing this can be viewed by a court as "fraud" if it looks like the intention was for the counter-party to miss the changes. It's their problem if they miss changes, but it's your problem if you used deception to cause them to miss it. This exact thing that you suggested is what he told me I shouldn't do if I want it to hold up in court.

I ended up signing a contract that said "cannot work for any customers, competitors, or suppliers for twelve months" of a global company that worked with every industry and most companies. I went the route of hiding my next jobs in LinkedIn after I left.

> It's their problem if they miss changes, but it's your problem if you used deception to cause them to miss it. This exact thing that you suggested is what he told me I shouldn't do if I want it to hold up in court.

I did not at all suggest trying to cause them to miss the changes. I suggested (with the caveat of asking a lawyer), "Don't say a thing; leave it to them to bring it up". That's a common negotiating tactic, even in amateur or interpersonal negotiations. I'm not imaging they won't see it, I'm imagining they won't want to create problems for themselves by bringing it up.

> I'm not imagining they won't see it

As my lawyer put it, if the communication goes like this:

Employer: "Okay great! Just sign these and you can start."

Candidate: *edits documents*

Candidate: *signs documents*

Candidate: "Okay great! Here I've signed 'em. Can't wait to start!"

That _might_ be fraud, regardless of your intent. Because there was no reasonable expectation that there was any negotiation even going on in the first place where any changes could have been expected to have been made. It sounded like different courts might have different opinions on the matter, but he strongly recommended against it.

As long as there was some version of negotiation going on "hey here's the changed document feel free to sign it and get it back to me" then you don't really need to tell them every little thing that changed, if they miss something it'll be much more likely to still bind in court.

If one party edits a legal document before signing it, and then the other party doesn't read it before accepting it, then that is on the receiver. This tactic is used by lawyers on each other all the time. It's not fraud.

I'd hesitate to rely on your advice here. Here's a relevant story:

https://a16z.com/2014/02/06/why-i-did-not-go-to-jail/

More specifically to this exact discussion, see California Civil Code 3399:

> When, through fraud or a mutual mistake of the parties, or a mistake of one party, which the other at the time knew or suspected, a written contract does not truly express the intention of the parties, it may be revised on the application of a party aggrieved, so as to express that intention, so far as it can be done without prejudice to rights acquired by third persons, in good faith and for value.

This would allow an employer to seek reformation. It's not clear to me as a layperson if this reformation could apply retroactively or not.

Or this interpretation of the consequences of a recent case in Virginia: https://www.virginiabusinesslitigationlawyer.com/when-negoti...

The actual decision: https://www.virginiabusinesslitigationlawyer.com/wp-content/...

The facts of this case do not mirror exactly what we're talking about here, so I'm definitely not trying to give legal advice. Maybe this wouldn't apply -- reading through it, it's a bit more egregious than what we're talking about here.

It's pretty eye opening how comments like this gets down voted.

Is providing legal information with authoritative sources in a thread like this somehow offensive?

(I've wised up personally, never try to do that myself again lol)

This is something that's truly atrocious about the move to digital-only copies. On paper, I can mark things up, initial them, send them back. The digital copies let me sign, and that's it. There's no in-band way to indicate that a section should be changed, no way to clarify wording. It's a system designed for contracts of adhesion, and nothing else. Heck, most of them will automatically scroll to the next place for a signature, implying that you shouldn't actually read what you're signing.

The existence of the automatic scroll feature should void the contract. They are actively trying to discourage reading the contract. There is no meeting of the minds.

How do you do this when contracts are signed digitally nowadays?

> I'm in a US state that allows non-competes and recently turned down a job because I wasn't comfortable with the non-compete expressly because the company's opinion of its own market was so broad. They implored me to trust that they had "never sued anyone" and "have no intentions to", and I think they honestly believe that. But then why have the non-compete at all?

FWIW you can try editing the contract, removing the NCC clause, or tacking on steep consideration for exercising the NCC (as well as hard limit on it).

If they never sued anyone and have no intention to, they don't need an NCC clause, strike it out and ask them to sigh the updated contract.

They don't even need to sign it. You've only signed the edited version, so they can either use the edited version or not have a non-compete. If you're comfortable with the edited version it doesn't really matter which one they choose.

If the non-compete is just a part of the overall employment contract, that means you are working without a contract. That can be problematic if the contract establishes benefits for you, like your salary, your bonus, your vacation, etc., etc.

Good point that I definitely overlooked. I was assuming the NC was a distinct document.

> tacking on steep consideration for exercising the NCC (as well as hard limit on it)

Now I'm mid-career, employers want to hire me for my experience.

If presented with a non-complete clause, I first strike it out, saying it isn't fair that you stop me working in my core area of expertise, when you're hiring me for exactly that reason.

If that gets refused, I instead add a clause that says any period where the non-compete is enforced will be paid at my full salary.

In practice, there ends up being a short discussion with HR, some thinking behind the scenes, and that clause is allowed. And when I eventually leave, the non-compete period ends up being waived.

> If that gets refused, I instead add a clause that says any period where the non-compete is enforced will be paid at my full salary.

I believe employment NCs should be illegal, but this is the minimum standard a non compete should require to be legal. The fact that companies can essentially force you to stop working for years, without paying, is ridiculous in my opinion.

You did the right thing. It’s totally possible that they come back to you and say “alright, we’ll drop the non-compete.” Especially if the feds appear to be heading towards voiding them all anyway.

Also the people claiming (and believing) that they have no intention of suing are not the people who make the decision to sue or not (unless it's an extremely small company, or you are an important enough hire to be discussing this with the CEO and General Counsel). Even if they have the best intentions, some random recruiter or manager really has no insight into this.

Absolutely -- very early in my career, a startup I worked at had non-compete language in my original employment contract (naming very specific places I couldn't be poached to take a job at) and even though the company was very small and the person who made me the job offer was the COO (and they assured me they would never actually excise the non-compete), I still refused to sign until that language was taken out.

I also got language put into my contract to specifically allow for some of my moonlighting activities that could possibly be seen as a conflict. Both wound up being useful when the company expanded and they attempted to enforce different rules on me. Because my contract said what it said, I was able to get the HR person to back-off and didn't have any fear when I did eventually leave for a competitor. And because of my moonlighting clause, I was able to have side-projects when other employees were often discouraged from doing the same thing (part of me felt bad for having different rules, but if I was capable of getting those clauses put in my contract when I was 24, others were too).

It is true that employees, especially lower-level employees, don't always have the leverage to change the contracts they sign (especially at larger companies), but I would personally never sign a non-compete unless there were very specific scenarios involved (i.e. it was either incredibly, incredibly narrow or the company would pay me while I waited out the non-compete), no matter what HR or the recruiter says. You don't need to be adversarial when discussing language or making changes -- most places are reasonable. And if a place isn't reasonable but refuses to remove non-compete language from a contract, even though they swear they will never exercise it, well, that's a giant red flag.

> if I was capable of getting those clauses put in my contract when I was 24, others were too)

> It is true that employees, especially lower-level employees, don't always have the leverage to change the contracts they sign (especially at larger companies)

Confused, so do you think this is practical for people or no? There are only so many 3-person startups to go around that would change any terms for anybody...

It was 10 person, but my point is people can still negotiate, even when they are young. And there is still a big gulf between a 300 person company (the startup I was at at its peak) and a 150,000+ person FAANG (where you will have less leverage as a non exec hire).

> There are only so many 3-person startups to go around that would change any terms for anybody...

This depends entirely on their terms, how many potential hires read and care about their terms, what sort of talent they are looking for, and how attractive the position is.

Sure it's a hassle for the 3-person startup, but I imagine this is much harder with Big Co. where the hiring manager may ask legal to make changes for a great potential hire and legal tells them to take a hike.

I had an employer hit me with an even more egregious non-compete. It said I couldn't work for 12 months for anyone in a market they were in, or in any market their competitors worked in.

Our little sub-$1million startup was selling devices that competed with devices from a bunch of mega players like Dell, IBM and Amazon. Who's left to work for if you can't work for anyone who competes with Amazon?

I have seen multiple small companies that contribute to the CNCF demand their employees sign noncompete agreements like this.

Even working a retail job would violate this agreement, as that is a market their competitors are in (despite it having no relation to cloud tooling!)

That is the US justice system in a nut shell. Its really just a threat for large companies to bleed people until they cannot afford to fight anymore. They dont need to win, they just need to stay solvent longer than you can.

> They implored me to trust that they had "never sued anyone" and "have no intentions to", and I think they honestly believe that.

It doesn't matter what they believe, because a company does not have the same consistency of goals and actions as a person, and even a person can't be entirely trusted on things (even family sometimes turns on each other if the circumstances are sure enough). A company? Their entire board and management might change over time, or they might be bought out and have another entity with different goals.

Put another way, when considering and NDA during hiring, you should consider whether you would work for Oracle under the same NDA. Because what would happen if Oracle bought (or bought a controlling interest) in that company tomorrow? Do you still think you could go on past behavior with regard to legal action?

This is the exact same with privacy, and that's where I usually bring this up. It doesn't matter that I think Google is unlikely to do anything bad with the private info they have about me right now. I'm more worried about the Google (or whoever ends up with the data) five, ten or fifteen years from now.

> They implored me to trust that they had "never sued anyone" and "have no intentions to", and I think they honestly believe that. But then why have the non-compete at all?

I feel like I'm yelling at a brick wall when I make a fuss of this, but this happens every time I see a doctor too. I'm asked to sign forms acknowledging I've read and understood long legal documents that they don't have a copy of to show me.

"It doesn't matter". Well I can't see the doctor without signing it. It only matters if they don't get their way. The same is true of the non-compete: it's because it only benefits them.

Don't make a fuss yourself. Just cross out the bit that says you've read some other mystery documents and sign the truthful version. Let the receptionist be the one to make a fuss.

When I worked in California I would sign any non-compete you want. They are thrown out anyway.

According to the California Business and Professions Code Section 16600, “every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void.” In other words, non-compete agreements are not enforceable in California.

What happens if you leave California for a couple days and do a bit of work in another state without a similar clause?

> They implored me to trust that they had "never sued anyone" and "have no intentions to",...

For me, I have basically the same thing, but when I brought that up they straight up told me it'd be non-enforcable for the most part [1], along with that they put it there, because they had some people who started there just to get access to some expensive training, then left for a competitor/started their own company.

[1] which is actually the case

> They implored me to trust that they had "never sued anyone" and "have no intentions to", and I think they honestly believe that. But then why have the non-compete at all?

Great answer BTW!

> There are two kinds of non-competes, and both have problems.

There are more kinds of non-competes. Neither of the kinds you're listing is blanket-legal anywhere in Europe, as far as I can tell, but there are still NCC/NCAs.

Generally speaking, in Europe, NCC/NCAs must:

* show a reasonable business interest, mere competition does not ever qualify

* be geographically limited

* be temporally limited (rarely more than two years)

* be financially compensated (significantly, usually on the order of 50% gross salary for the entire period)

> Obviously, if I work as a developer making a stock trading app, I shouldn't be making a competing stock trading app after hours.

No it's not obvious at all. In fact I'd say that on its face it's obviously not true.

Unless the employer can justify of a super secret sauce which would be endangered by this there's no reason why you could not. You could work as a dev of a stock trading app, be passionate about stock trading applications, disagree with the company's ideas on the subject, and want to realise your own ideas.

As another comment said, and I can confirm from personal experience, just the fact that you need these to enforce a non-compete is no panacea. There is usually enough probable cause, or whatever legalese name it has, to take an employee to court and cause them enormous havoc and expense (UK anyway, but the rest of your post reads consistent with UK laws).

Additionally, if you think you are small fry for a firm to sue you, not necessarily. Enforcement of non-competes is just as much aimed at deterring others from trying as it is at affecting you personally, if you spread the cost for the company over the 10-20 employees who are deterred, it suddenly looks cheap.

Even if against the odds of going against a large corporation with deep pockets you eke out a win in court, you are almost certainly not getting all your money back, and none of your time and stress either.

Honestly I think that just requiring that NCAs be financially compensated like that would be enough to prevent them from being a problem.

> be financially compensated (significantly, usually on the order of 50% gross salary for the entire period)

I think this is the most important protection that's needed in the US. NCCs for high-level executives with golden parachute clauses actually makes a lot of sense. If their former company is essentially paying them (usually a lot!) after they leave during the NCC period, that is unlikely to get abused and overused.

For anyone who's knowledge and connections is not important enough to those kinds of payouts offered to C-suite execs, NCCs are just a way to bully employees into not leaving.

For C-suite execs, I can definitely see it being a reasonable thing. And, honestly, at that level especially in large companies, skills are far more transferable to even totally different industries.

Those NCC/NCAs are unenforceable in California (outside some very specific exclusions, like C-level/founders), and California thrives, arguably because of it! I don't want my employer to be able to bully me into a contract where I can't switch to whatever job I want (even for "max 2 years" and half my previous pay...). A blanket ban clearly works and removes some of the employee/employer power imbalance. Should be the end of discussion.

Apparently in the UK non-compete are enforceable even when non remunerated, although your other points might stand: the non-compete must be in pursuit of a business need (i.e. not just a punishment because you left), and as should not extend in time and space more than required to fulfill that need (non-compete more than 6 months are rarely enforced).

And normally in the UK and a believe Europe the more senior you are the more likely a NC would be valid.

Which tracks: the higher in the food chain the more you’d be privy to strategic information and to-be-disclosed deals (e.g. bug contracts) allowing severely undermining or kneecapping the company.

> Obviously, if I work as a developer making a stock trading app, I shouldn't be making a competing stock trading app after hours.

Why is that obvious? If I work as a studio musician can I also be working on my own album after hours?

> If I work as a studio musician can I also be working on my own album after hours?

Yes.

> Why is that obvious?

Just because there's a law somewhere that covers both a part of making music and part of making software, and just because some programmers make music and some musicians write software, and both are sometimes creative, doesn't mean they have much in common.

If you're using melodies and samples from work hours, then maybe not. And it would be tough to argue that your at-home trading app code is completely uninfluenced by ideas you have at work.

True, but you can’t use the studio’s IP regardless of whether you work for the studio.

> If you're using melodies and samples from work hours, then maybe not.

That would not be a question of competition, but of IP theft.

> And it would be tough to argue that your at-home trading app code is completely uninfluenced by ideas you have at work.

How is that of any relevance? I can have ideas about a better way to wipe my ass at work, is my novel ass-wiping implement competing with the company?

And even if it were, mere competition should not be enough for NCCs to trigger. NCCs should be about unfair advantage owing to the exploitation of sensitive or confidential information.

Well, if your company is in the ass-wiping business...

Even then I don't think so. Not unless the novel implement is straight up IP theft in which case… there's no need for an NCC, IP theft is already a crime.

This depends. You're drawing a very restricted form of noncompete, one which is that a noncompete is only valid if for example I walk away with, say information about customer priorities and take them to a competitor.

But there is a broader though still imo legitimate view that a company, paying a knowledge worker to solve a particular class of problems, has a right to the result of that work. An extreme example would be a company giving you a lab and research assistants, you working there a year and then parenting the results yourself and licensing them to a different company. It might not have required any insider info, and all the IP is ostensibly yours, but that feels abusive.

Granted we're overlapping into IP assignment and moonlighting clauses, but they're all closely related.

> And it would be tough to argue that your at-home trading app code is completely uninfluenced by ideas you have at work.

And that your at-work trading app code would be influenced by ideas you have at home.

You're a craftsman making trading apps, some for an employer, some for yourself, it's what you do. It's strange for an employer to be allowed to force you to stop doing the others without compensating you for it.

> And that your at-work trading app code would be influenced by ideas you have at home.

Umm, but you are also taking money from your employer so you can't say that in reverse.

Umm, but your employer is also taking time from you so you definitely can say that in reverse.

In fact, your employer is taking your a fragment of your life, and human life is worth more than currency, so actually, it's really quite inappropriate if your employer was found accidentally using ideas that you had while you were in the shower at home when they weren't paying you. (internet you-can't-hear-my-voice disclaimer: this is obviously hyperbole meant to really drive home the point.)

I'm generally a fan of market-based methods of structuring economic activity, but this sort of implicit assertion that the owner of capital is just obviously more important than the owner of labor really puts the "ism" is Capitalism.

Labor is a market, and markets are determined by both the players and the rules under which the players compete. Companies use the force of law to coerce laborers (see: every other post in this tread where supposedly free people worry about being sued). It's completely fair game for labor-force participants to turn around are use that same force to coerce employers.

It just depends on your agreement with the company. There's no reason that by default they own everything you do, beyond the fact that business has normalized it (and many other practices with the magic words 'it's just business').

>And that your at-work trading app code would be influenced by ideas you have at home.

Which is an issue legally. Who owns the code? Who needs the license to use it?

This being an issue seems weird. Surely your employment contract could include an extremely permissive license grant to your employer for any code you've written that you use at work, regardless of whether you own it or they do. That's much less intrusive than a noncompete.

That seems like a strange clause I would want to include. I have (?) lines of code, as well as other IP. Why would hiring me for a year give them access to free license of all my IP?

I saw something in Theranos's employee contract about granting a perpetual license to all the patents of the employees. I have no idea why that would be reasonable.

The code that you used at work. If you make something outside work, and never actually use it in your employer's codebases, they don't get a license. Whatever you do use in your work at your employer, they do get a license to. Which seems fair IMO, and avoids the pitfall of "wait when did you write this and can we use it?"

I'd much prefer this to a noncompete.

I understand what you're saying. But again, it seems strange to me that previously existing code/patents/IP would default to the company if you were directed to include it. It doesn't avoid the pitfall you suggested, it moves it so that it now becomes "think about it every time you are asked to do something at work" instead of "one time while signing a contract"

And the Theranos contract had no such limitations (that I could see) of opting in to using it in the company. Just "we can use any of your patents you had at the time you worked here, thanks".

There is no protection for ideas, only for authorship.

So what you write at work is your work's, what you write elsewhere is not, by default.

There's a difference in competition and compensation between a craftsman who constructs products and an inventor who generates ideas. The problem is that the world is not black and white, there's a little of each in every career, and obviously companies want the best of both.

If you were a carpenter who worked in an old-time furniture store, turning chair legs on a duplicating lathe at work and turning toy spinning tops on a treadle lathe at home, there's no harm to your employer if you use some related skills at home. If you're not making parts that match their requirements, those parts are of no value to them. The company might as well pay you per unit, rather than hourly or as a salary.

If you worked at a think tank or research institution, your job might be to generate one particularly brilliant concept that was by itself worth your annual salary. You might spend your days testing ideas and improving your understanding of the problem domain while your subconscious mulls over everything at night. A musician is an interesting career in context - are they paid to move samples around in Pro Tools or think about and try a huge variety of riffs until they find the next Top 40 sound? If you had a great idea in your sleep, it was probably because you've taken a paycheck for the last 6 months at work generating no useful output, the only thing you built was the thought patterns in your brain. The company wants to own your brain, the thought patterns therein, and everything you think of.

Technology and automation is making ideas more scalable all the time, the industrial era where workers were paid to pull a lever repeatedly is in the past. I think we're only seeing the beginning of non-competes.

Laws should be written to increase long-term production, and protect the weak. I do not see how this law does either. It's classic bullying.

Many employers see their markets as zero sum game.

Many markets are zero sum

You have a good idea for improving the product at 10 am. You think about it between 10 am and 4 pm. At 4 pm you discard the idea, not gonna work or sth. At 6 pm you type it into your app at home.

Of course most people wouldn’t, but this is one narrow area where I think it is reasonable to limit employees.

For the most part artists signed to songwriting or publishing deals as well as run if the mill record deals sign over the rights to everything they produce during the covered period.

You know, you're right?

I've been so indoctrinated in how non-competes work that I didn't even see that this wasn't obvious. Gah.

Why is that obvious?

Because it creates a clear conflict of interest; stock trading apps compete with each other much more directly than do music albums.

> Because it creates a clear conflict of interest

If you're not doing your job anymore, or are sabotaging your dayjob, then it's an employment issue. NCCs have no reason whatsoever to enter the equation before or after.

Yes that's a totally different employment relationship - you could be sued for plagiarism though.

The implication isn't that you can't work in the same field, but that you could use inside knowledge trusted to you as an employee to get a leg up, which would be more analogues to taking licks and ideas from a hit album and using them in your own.

What if that recording studio considered inside knowledge of the publishing industry gained from your employment with them as getting a leg up? That is more-or-less analogous to what a family member was told when asked to sign a non-compete for a job as a grocery store clerk. (To be specific, the company viewed knowing who their supplies were as reason for a non-compete.)

I share your concern but modulate the concern with two factors (you may not agree):

1 - if you work at a company like that (faang, basically) you probably have a choice of working elsewhere and they are paying you handsomely to give up the ability to have almost any software or electronics side projects (my gf wants me to go work at one of them and I have decided it’s not worth the money, though I can understand why others can reasonably think otherwise).

The first section of the article talks about this: US labor law is pretty firmly rooted in freedom of contract doctrine even though for most people there’s such extreme asymmetry of power that any “freedom” in this area is illusory. But if you’re a FAANG developer you aren’t one of those people — you have a choice.

2 - every such agreement I have signed has had a “carve out” clause: you can list things you’ve been working on (which is vague, I have listed areas I’m interested in and have looked into and counted that as ”work”) and exclude the stuff listed there from the agreement. Of course the new employer can disagree with the choices (“ARM CPU designs? That’s what we’re hiring you to do!”) but again, if that were you, you pretty much would have freedom to negotiate. I think such an objection would be pretty fair for an employer to have in that situation.

Also if you decide later you want to write a stock app but hadn’t listed it, well, c’est la vie.

> if you work at a company like that (faang, basically) you probably have a choice of working elsewhere

Heh. I advise early career students from my alma mater. One of them took a job with a mom-and-pop web dev + IT firm. Super mom and pop. Like, maintaining word press and similar installs for maybe a few hundred clients and then bundling that with generic IT services (computer repair, maintenance, blah blah blah). Basically, as boring as you could possibly get.

That employer told my advisee that because the company develops software, their non-compete covers all software.

Are they correctly interpreting state law? Absolutely not. Does that matter to a 2x-year-old making 80K worried about losing their job, being sued, being blackballed in their small regional labor market (which they don't want to leave for family reasons)? Also no.

> 2 - every such agreement I have signed has had a “carve out” clause: you can list things you’ve been working on (which is vague, I have listed areas I’m interested in and have looked into and counted that as ”work”) and exclude the stuff listed there from the agreement.

Wait, are you sure that list works how you think it does?

The vast majority of employers won't even talk to you about the scope of their non-compete.

At the outset, you are supposed to white-list things when you start employment. But then anything non on that white-list (which includes every idea you have after the moment you fill it out!!!) has to be assumed to be covered under the NDA, unless you're willing to risk a court battle and an enemy.

Yeah, Junior devs are in the majority who don't have a symmetrical relationship with the employer. In California such a broad remit would not be enforceable.

FWIW court battles are rare. But better to get rid of the noncompetes regardless.

> > 2 - every such agreement I have signed has had a “carve out” clause: you can list things you’ve been working on (which is vague, I have listed areas I’m interested in and have looked into and counted that as ”work”) and exclude the stuff listed there from the agreement.

> Wait, are you sure that list works how you think it does?

Yes, that's the whole point of that list and the language is very clear.

FWIW I've mostly been the employer, not the employee and I always scrutinize those lists carefully (if someone writes anything there I have to approve it before the agreement can be signed). Not because I care what people do in their free time, but to see if there's anything there that could cause a disagreement, especially if it would be an innocent disagreement. And I have never seen anyone write something that seemed unreasonable there. TBH most people leave that blank.

These docs always go with the employment offer; if the employee doesn't see them until their first day what kind of negotiation is there then? The whole point is to have someone join us and be happy to work with us, not to take advantage of them.

> We do ML, you can't do ML outside of work (I asked legal that one).

Keep in mind the legal department represents your company, not you. They will tell you the interpretation of the non-compete most favorable to their client. It doesn’t mean it is correct or even enforceable.

Problematically though, in most of the US ridiculously broad NCCs are enforceable. The only place where you're safe is California, where the only way for an NCC to stick is related to business (co)-ownership (selling the business, dissolving a partnership, or dissolving an LLC). Out-of-state NCCs are also un-enforceable in California.

You made a very general statement! They are enforceable because usually the violator is doing something ridiculously broad. Like going to work for McDonalds R&D after leaving Burger King as the VP of product design.

My anecdotal experience:

I once worked for a major bank and someone who left another major bank held a meeting with developers of a next-gen platform where he basically explained, in explicit detail, his old employer's entire platform. I would argue a non-compete would be 100% enforceable here.

Another time, I was threatened to not use any IP from a startup I helped start. I specifically asked early on for an agreement to share the rights to my code. On my last day this agreement was terminated and the non-compete took precedence. Consulting with several lawyers (not in california) told me that it would be an uphill battle for the business to win against me as the optics of a large corp suing an individual doesn't bode well for the plantiff. Unless you started a multi-million dollar revenue generating project, which in that case I was advised to settle as a peace offering.

> Like going to work for McDonalds R&D after leaving Burger King as the VP of product design.

Don't rightly see why there would be any issue with that. If you bring McD IP to BK, then that's an IP theft issue.

> I once worked for a major bank and someone who left another major bank held a meeting with developers of a next-gen platform where he basically explained, in explicit detail, his old employer's entire platform. I would argue a non-compete would be 100% enforceable here.

And I would argue a non-compete should be 100% non-enforceable here. "I learned shit on my previous job" doesn't mean you should not be able to work in the field anymore.

At what point does an explanation like this turn into "here's an inside look at exactly how their platform outcompetes you in area X"? Where does one draw the line?

> Where does one draw the line?

https://en.wikipedia.org/wiki/Trade_secret

If a company doesn't know exactly why and where their competitors are better then them, they are not long for this world.

This is what non-disclosure agreements are for. A non-compete would basically have prevented him from getting this new job.

But I don’t think this is nearly as true as you think it is. In Massachusetts, for example, if you were laid off your non-compete may be completely void and unenforceable. In some states the clause is only enforceable if the employee is given consideration for entering into the agreement and continued employment is, by law, not valid consideration. Other states have specific rules about how the non-compete clause must be written or provided to the employee: given X days before signing, notifying of right to counsel, etc. In large multinational corporations with standardized employment documents it’s hard to keep up with all of the changes to local law so the provision in your agreement might be invalid in your jurisdiction on its face.

There are so many factors to consider but so often people just assume defeat and don’t even bother to seek out legal advice. And that’s only to management’s benefit.

I would like to understand whether there are any states that even occasionally backs the employer in non-competes for the general layperson. In my experience, courts tend to side with someone who's willing to work over employers.

This is why non-competes are a joke in the US. Courts aren't going to enforce them. Almost every state has an industry where moving between companies, or starting companies to compete with existing companies, exist (midwest auto industry, New York financial industry, Texas energy, etc).

It's great that California is so explicit. I wish other states would follow suit. But the only times I've ever seen a court uphold a non-compete is for highly (8 figures) compensated employees.

Can you elaborate on this? Are you a lawyer? Do you follow cases? Not being sarcastic, genuinely want to know.

I think that Massachusetts takes the anti-California approach. The medical and pharmaceutical industries have really pushed for string enforceable NCC

Companies like EMC also pushed for them.

But changes in the law in 2018 weakened them considerably and made them more expensive to enforce via garden leave or alternative consideration. The only time I've had a non-compete in MA (small sample to be sure) was when EMC acquired my employer. The terms were actually fairly reasonable and didn't affect me when I left six months later.

Sure — but if they use that interpretation to decide whether to pursue a lawsuit, then it's relevant to you even if it turns out to be unenforceable. (See the last couple paragraphs of this comment: https://news.ycombinator.com/item?id=27857407)

Yeah especially in the US, if a large corporation wants to pursue legal action against you, this can be enough to destroy your life. In lots of places, the loser of a lawsuit has to pay the legal fees of the winner, but that's not generally true in the US. That means a large law firm or legal team can file a dubious lawsuit in such a way as to tie up years of your life, and cost you a significant portion of your wealth.

Bullshit clauses like this are exactly why I was reluctant to get a job in ML.

My reaction would be "Fuck you, I do ML, I'll do ML outside of work if I damn well please" and then quit.

(Posting this down here since it's not really toplevel reply worthy and is admittedly a rant, but I do feel the need to express that somewhere. It's tiresome that companies think they own you.)

> "do you have a github account?". No, I've been highly motivated not to.

That is a shame, and given the extent to which most businesses and groups are built on Open Source, the fact that your situation is not in any way unique (to your employer or at large) is what makes it IMHO much worse.

I ran into technical limitations with my testing framework at one point where I realized that it was going to make my work 10x more complicated if I couldn't simply take some of the common libraries that I had factored out of my apps, and make them public.

You know what I'm saying, the CI machine can't run without a machine account if "bundle install" requires a valid SSH account. Getting the SSH account inside of a Docker container was an exercise of Rube Goldberg proportions, I eventually did it, but doubt strongly I would have ever been able to get anyone else to understand how or why that solution worked.

So I did the rational thing and published a few libraries to simplify the stack. 6 months later, we received a message from the head of InfoSec who was "very disappointed" after looking at our GitHub account.

Nobody competes with us. There was no risk of helping the competition. We're not in the business of software development (though we had an entire department of folks whose job title was Application Developer, so figure that one out...)

Their concern wasn't that it was against an NDA or that we hadn't gotten it approved, it was that threat-actors will take any signal they can about our internal stuff and turn it into an attack vector. Given what specifically it was that we had published, this was beyond irrational. I told them "it's 2020 and this is a backwards position to be holding in 2020." Shine a light, get more eyes on it.

There is no danger and I'm glad that someone looked at my code, I said, even if only for a few minutes – which I know would not have happened at all if we kept the repo internal.

Yeah, I don't work there anymore (not specifically because of this incident, but it was a contributing factor to me leaving voluntarily, without a doubt.)

> Obviously, if I work as a developer making a stock trading app, I shouldn't be making a competing stock trading app after hours.

A lot of siblings have pointed out that this isn't the case (I'd agree), so it's maybe worth digging into why you (and likely many people) think this should be the case.

My guess is it's to do with IP and trade-secrets, but that's clearly already covered by IP law and absolutely doesn't need extra provisions in employment contracts to protect company interests there.

If I create a competing stock app, I need to be able to demonstrate novelty. If I can do that, I don't see an issue. My employer still has a lot of advantages in the market (first-to-market network effect, funding, etc.) so if I'm able to compete with them without stealing IP, I must have (tangible/intangible) assets unique to me as an individual to do so: my employment contract should not sign over those assets outside of my working hours.

If I'm actively weakening my employer's product during my working hours to benefit my own that's easily a firing offence without the need for non-competes.

What other reasons are there?

I suppose enforcability? It's easier to tell when someone has created a completing application vs whether they were purposely doing bad work (or are just incompetent)

I just assumed that was a big part of what big tech is paying for when they over-pay developers. They are buying you off so you don't work for competitors, or someday become a competitor. It's a bit of a gilded cage.

Agreed on the first kind. It kind of sort of makes sense in the original context: say I run a bakery. I put it up for sale. You think it's a pretty good deal, so we agree and I sell the bakery to you. Then I take the money you paid me to renovate the building across the street, hire your employees out from under you. Customers quickly learn that the "original" moved across the street, and I'm laughing all the way to the bank. A noncompete that says, "I promise not to open a bakery within 40 miles in in the next 3 years" is pretty reasonable. However, the concept deteriorates with the internet, where there's no reasonable equivalent of a 40 mile radius, so the terms become "just don't use your expertise for X years".

Noncompetes for employees are much more dubious. If my head chef wants to try and pull the same trick on me, it's his investment at risk... If he's really that motivated to undercut me, maybe I should think long and hard about why. The only variant I could see being okay with is if the term starts at the start of the employment. That is, if you leave after 2 months, you can't compete for 22 months, but if you stay the full 2 years, nothing stops you. (I still don't like that, but it's tolerable).

I'm not sure about the second type of noncompete. Is it the problem, or is the problem that your employer does everything? I suspect both, and a fairer version would restrict the noncompete to "stuff that you work on directly". Or maybe the noncompete should have to specify the bounds and wouldn't be enforceable if they're too broad, similar to patents... on second thought, never mind. In any case, I'd first like to see whether it's still overly restrictive if companies were capped to some reasonable size.

But the NCC would be for the baker to not work for another bakery within a 40 miles radius and that is terrible, they would not be able to exercise their profession.

The second one is worse than that. You’re a line cook and due to businesses not wanting to pay benefits. You can only find part time gigs. Forced to sign a non compete now limits your options for a second job.

Line cook is an extreme example but it happens to other professions like personal trainers. There has been cases where non competes were forced on restaurant workers.

> but it happens to other professions like personal trainers

Funny enough, this exact issue caused me to lose a personal trainer.

See, he opened a gym that competed with the gym he trained me at. Like, he was the owner and manager of that other gym. While also being an employed personal trainer at my gym. And did not hide this fact from anyone.

When the gym told him he had to quit or be fired, even he was of the "I'm surprised it took this long" perspective and understood their reasoning.

The first one is absolutely problematic, and I've been personally negatively affected by other people's non-competes a couple of times, but there's some nuance there, I think.

I would like to live in a world where companies invest heavily in educating and training their employees and where there's a lot of transparency within companies. One of the reasons you don't get that is because of the fear of an employee getting seduced by a tiny pay increase and losing a bunch of competitive edge / trade secrets / investment.

There are other ways to address that than non-competes, granted, but we're not doing those things either. In place of more nuanced non-competes you just get more companies expecting you to take on the risk of buying your own education to be trained in a job, bureaucracy and lack of trust in employees, etc.

The second kind is "You can't compete with us while you work here".

It's just semantics, but these restrictions are usually not covered by "non-compete agreements". They are more often called something like an "IP assignment agreement", where you agree that anything you produce in your employer's area of work while you are employed there, the IP belongs to your employer.

In practice, many employees simply ignore these agreements, and it usually works out fine. The FAANG companies aren't in the business of suing small companies started by ex-employees. Asking legal is pointless, they will just tell you that everything is forbidden. So just ignore your legal department and work on your side project.

Yeah that would be solved by NDAs and trade secrets.

Then if you write a stock trading app... Did you have any contact with the team that was writing the companies stock trading app, did you sign any NDAs about that, did you receive any information about that, did you have any trade secrets? No? Then they shouldn't have any claim.

IP assignment and non-competes should be eliminated for non-managerial employees.

Or for IP assignment it needs to be whittled down to narrowly apply only to what the employee actually worked on, not anything the business does.

NDAs and trade secrets are difficult to enforce in practice for many types of ip that can't go in a patent, like market and product strategy.

That is not a good reason for every software engineer at the company to be under overly-broad non-competes.

> So just ignore your legal department and work on your side project.

Nah, I just quit, and in my exit interview I told them why.

It’s a good reason to keep quiet. :-)

What’s interesting about the first case you cite is those types of NDAs help individual companies but hurt the ecosystem.

Wherever there’s a large grouping of world class firms, they benefit in aggregate from cross-pollination. Think NYC for banking and advertising, CA and Seattle for tech, Houston for energy, Etc. One reason people can chase the best ideas in CA is non-competes aren’t enforceable. But in any individual case someone leaving hurts the firm they were previous employed at. So firms still push for non-competes.

> And that's ignoring the who-knows-how-many secret un-released projects that might relate.

Most software businesses exist on a tenuous information asymmetry turbocharged by capital (dumping, to reduce prices). The noncompete is about protecting well-capitalized customers from doing the stuff they're buying from Amazon themselves - not because they poach an employee who knows how, but because they find out that a piece of free, open source software is the secret to it all.

There is a third kind which bars people working for professional services companies from taking clients directly or going to another company and taking clients.

> they ask "do you have a github account?". No, I've been highly motivated not to.

I release all my projects under a fake name and fake Github for this reason. Ethically dubious, but I still get to contribute code and I have something to send a prospective employer.

When they ask why it's pseudonymous, I say "non-competes" and they nod in understanding.

In the UK, there's Unfair Contracts.The US is the same, I would imagine. Here's what https://www.lawdepot.co.uk/contracts/non-compete-agreement/ says: "Employers can create a Non-Compete Agreement for as long as they wish. Having said that, if a Non-Compete Agreement limits a former employee for too long, it’s unlikely that a court will enforce the document.

Judges will likely consider a period of six months to a year to be a reasonable amount of time. The time period you choose should reasonably protect your company and make sense in your industry. As a result, there isn’t a standard time period for a Non-Compete Agreement."

So, tricky, but anything longer than a year is likely to be deemed unreasonable. There may be exceptions, such as when a business owner sells a business, and the sale contains a non-compete. In that case, a non-compete is likely to hold up.

The article goes on: "Courts may not enforce a non-compete clause in the UK if:

* The effect could be harmful to the public (if it restricts commerce and depresses the local economy) * The scope is broader than necessary to protect the employer * The restriction would cause undue hardship on the employee (too difficult for the employee to find a new job) * The agreement has unreasonable time or geographic restrictions"

In late 2020, the UK gov't sought feedback on "Measures to reform post-termination non-compete clauses in contracts of employment " here: https://www.gov.uk/government/consultations/measures-to-refo... The outcome has not yet been published.

"The purpose of the consultation is to seek views on:

* proposals to make non-compete clauses enforceable only when the employer provides compensation during the term of the clause, and whether this could be complemented by additional transparency measures and statutory limits on the length of non-compete clauses

* an alternative proposal to make post-termination, non-compete clauses in contracts of employment unenforceable"

This seems to be heading in the right direction. I am against non-competes in general.

> Obviously, if I work as a developer making a stock trading app, I shouldn't be making a competing stock trading app after hours.

For rank-and-file employees, I don't think this is so obvious. It presents a potential conflict of interest, sure, but if I'm fulfilling my job responsibilities and not holding anything back or stealing nonpublic info/trade secrets/whatever then what's the problem? It shouldn't be the mere possibility of competition--we like competition, remember?

In America we default to the corporation's rights taking precedence over the individual's rights. We say the mere risk that an employee's side projects might step on their employer's (poorly defined) rights in some way is enough to preemptively assign ownership of all the employee's work to their employer, just in case. From the viewpoint of the corporate masters and the lifelong-conditioned wage-slave masses, that seems good and right; in a vacuum, IMO, it seems completely backwards. We should be trying to nucleate innovation, not stifle it. Why should an employee with a good idea, who is not paid to have ideas in that scope, jump through whatever hoops it takes to get their employer to notice it--probably at the cost of their own time, uncompensated--and let said employer reap the lion's share of the rewards?

Even for employees who are literally paid to generate ideas, for product design or strategy or whatever else, the onus should be on the employer to provide a good value proposition for employees to share their ideas (the original contents of their own minds) rather than hold onto them. In reality I see plenty of cases where this does happen, so while the "shower idea" argument is compelling enough, I don't think it's an effect that stands to substantially threaten corporate success regardless of whatever rote legalese appears in employment agreements.

At the very least, even if (the general) you don't agree with me, you should take a step back and consider whether your personal ethic of capitalism is giving employers more moral weight than they are really due.

It presents a potential conflict of interest, sure, but if I'm fulfilling my job responsibilities and not holding anything back or stealing nonpublic info/trade secrets/whatever then what's the problem?

This is a bit like "sure I'm dating one of my direct reports, but as long as I don't show them any special treatment what's the problem?". In both cases even if you genuinely believe what you're saying, it causes your incentives to be very much misaligned with your employer's.

My incentives are never going to be in perfect alignment with my employer: I work for them to build my own wealth, and they employ me to build theirs. The foundation of the employer-employee relationship is that each provides the other with a means to realize their incentive in a way that's mutually satisfactory, if asymmetric. If this relationship is out of balance, either party is free to engage in negotiations or terminate the relationship.

Employers have concrete strategies available to them for maintaining their position in this negotiated relationship. Typically they will have a performance review process, which should have no problem determining whether they're getting what they're paying me for. Separately, the legal system we're both subject to protects legitimate intellectual property perfectly well without overbearing noncompetes and invention assignments; cases of physical property theft, etc., are also covered.

So what's the problem? Why should employers have additional rights to make sure that, if the situation is ever remotely muddy, it goes their way by default?

(I say should in the moral sense, and the broader sense of socioeconomic utility. In a might-makes-right frame, obviously they should have it simply because they are strong enough to take it. That is what we have right now, in practice.)

Had a non-compete (consulting). Employer was cool at my old workplace. We didn't have any super-proprietary knowledge or book of business to walk off with - so generally they weren't enforced. But they needed it to protect the business and I can understand that.

In my state, by law the contract can't cause 'undue difficulties'. You could prob make the case that were I to leave, it prevents me from working in my industry - I'd call that a good enough argument to go before a judge with, esp in a blue state.

The problem is that if there's any chance an employer will win, there's a cost that the employee needs to consider. If it's not clear that non competes are going to fail immediately, people are going to get bullied by letigious employers, and less letigious employers will actually benefit from the will-he-won't-he of it too.

Also note that there's a fair bit of legal myths floating around society, so if it's not made clear some people will end up backing out when they would have won.

> Obviously, if I work as a developer making a stock trading app, I shouldn't be making a competing stock trading app after hours.

How is that obvious?

If a single person, regardless of where they work, can produce a stock trading app that would actually compete against what a company is producing, why shouldn't they do it?

People are starting to learn how much power they really have (see the current low wage revolt), perhaps programmers will realize it someday and stop allowing companies to steamroll them.

> The second kind is "You can't compete with us while you work here". And that is a much more complex beast. Obviously, if I work as a developer making a stock trading app, I shouldn't be making a competing stock trading app after hours.

Why not? If a single developer can compete with the company that employs them, by only using their spare time, it sounds like that company could really use some competition..

> Obviously, if I work as a developer making a stock trading app, I shouldn't be making a competing stock trading app after hours.

As long as you're not using resources from your employer, including things like IP or trade secrets, then it's not so obvious to me.

What you do on your own time with your own resources is your own business. If that's seen as competition, then that's just too bad. This is how free markets work.

If your side project is at least a two man operation, say that all the work is done by your buddy, while you only have ownership rights. Or say your buddy hired a cheap noname outsourcing firm or even a freelancer who did the work and vanished. At the end of the day, software is too complex and it's unprovable that you did any of it.

I think not competing with any area in which the company works is a convenient test. But I suspect the ultimate legal test is actually more constrained. One more like: do not compete with an area for which you directly work in or are exposed to information about for the company.

Wow, yeah thanks for this. I never have time to study for code challenges... (I am a math/physics/optimization programmer - no code challenge prep background) looks like an order of magnitude more reason not to bother.

There are more.

I have some that state, I can't work directly with clients of my clients.

Shouldn't be a problem if they paid adequately. Employee that has 10x salary unlikely is going to look for his or hers own way. When I was on a low pay I always had side projects.

> Edit: eesh, this was a bit of a rant, wasn't it?

Not at all. I'm slightly surprised at the quality of the comments here as a whole, as many show a sentiment that employers would like.

Go ahead and make a Sudoku app. No one at Amazon will care. Contribute to the ML library. The worst that will happen in practice is they ask you to stop, but even that seems unlikely.

I know the former are illegal in California, but are the latter illegal as well?

Actually.

Why shouldn't you be able to make a stock trading app after hours?

It was a good rant

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