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Comment by MeinBlutIstBlau | Hacker News Reader

These non-competes are 100% illegal and unenforceable. The NLRB would back the employees in a heartbeat and companies are just using it as a scare tactic cause they know they can't defend it.

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They are absolutely enforceable.

A court might not enforce them, because, depending on your state, they may be of questionable validity.

But people who don't know that will believe they are enforced.

People who aren't willing to risk going to court will have to act as if they are enforced.

People who can't afford to go to court will have to act like they are enforced.

*Additionally, I have seen these contracts enforced outside the court system as well.*

I had a friend who was fired from a job he went to, because his former employer called his future employer, and threatened a lawsuit / threatened to drop mutual business because the future employer helped the employee break the non-compete agreement.

The past employer may not have had any case (except for the lost business), but the future employer didn't want to deal with legal trouble, and it was easier to just find a reason to fire the employee.

How sure are you that you won't be fired at your new job, because a conversation like that took place behind closed doors?

How sure are you that McDonalds would be willing to foot a legal bill to defend their new minimum wage employee, if Burger King threatened legal action?

Non-compete abuse needs legal reform.

Can you find a case of where they've successfully sued someone for this?

The point is they don't have to be successful to have teeth. A fast food worker probably can't afford a single day in court.

They can’t afford the lawyer consultation fees prior to court

Absolutely. The Wikipedia article is full of them. What's critically important to know is the rules where you live because they're different depending on jurisdiction. If you are in California, non-competes are invalid. (Silicon Valley was built upon the Traitorous Eight.) If you are in Massachusetts, non-competes are valid (and you better hope you don't need a new job in biotech any time soon).

Talk to your lawyer for advice.

If your friend was in a fast food type job it sounds like he would have a good lawsuit in most places. Can’t imagine any business interest the court would recognize there. Yes its terrible that big companies bully workers like this but it only stops when someone stands up and fights them.

By this logic, anything is enforceable because some people will think it's enforceable. Your point is a valid one, but it's also good to tell everyone that these contracts are not legally enforceable!

It would be even better if Federal and State governments told employees they were unenforceable, and better still if they did this after passing explicit legislation to ban the practice entirely (with civil penalties for employers who disregarded the law.)

If in practice a company can sue you and force you to pay legal fees until you are deep in debt (and you are not sure about winning), they are correct. Even if it's illegal, even if you would probably win.

Edit: What I'm trying to say is these contract should not just be illegal, the corporations using them should be fined into the ground retroactively for ever having had people sign them knowing (because they definitely know) that it is illegal. It's a willfully malicious action.

In the US, it depends on what state you’re in.

In California, for example, non-competes are illegal. So, companies sign or verbally negotiate mutual non-poaching agreements, like Apple and Google did a while back.

In other states, nothing prevents non-competes, and if an employer can get you to sign the paper, then that is enforceable against you with legal action. You can hope that the National Labor Review Board would be on your side and help defend you against such legal action, but there’s no guarantee that they would do so.

IMO, non-competes should be reserved for situations where you’re touching deep secrets within the company, and then only for short periods of time. Like CxO or Director type company officers, or Principal Software Developers or something like that. No one else should be subject to them.

> In California, for example, non-competes are illegal.

Illegal or just non enforceable? What is the fine or punishment to a company that would do it anyway?

Hmm. Yes, you are most likely correct.

I should have used the term “non enforceable”.

Thanks for the correction!

On too many occasions, when filling out those forms online that have become ubiquitous when applying for jobs, I have had to answer a question asking whether I am under any sort of non-compete agreement. I imagine if I choose yes, my resume will be sent directly to the trash folder on the applicant tracking system. The nuances about which clauses of the non-compete may not be enforceable won't matter.

If I lie, I imagine it will only take one phone call from the previous employer for the new one to fire me. If you tell the truth, I don't get the job in the first place. If I want to invalidate it through courts, well I don't have more than 10 million dollars in the bank, and we all know even single digit millionaires have no effective access to the legal system.

I am not a minimum wage worker or in the US, but I am sure people applying for minimum wage jobs in the US see similar questions and have to fill out similar forms.

You might try looking for poor people (which is anyone who's not a millionaire, by parent comment's definition) who have managed to get effective access to the legal system. I'm sure there are millionaires that don't, but that's not a money issue and there's something else going on.

The cost of enforcing your rights is usually beyond the means of someone working a minimum wage job.

It's not illegal by any means, it's ability to be enforced is questionable though given precedent. Look at any tech firm with CEOs whom used to be with their firm's competitor;

That's a large chunk of chief legal officer work, getting new hires out of the non-competes by proving the contract was not enforcable in the eyes of an average reasonable person in that locale.

But...FF employees won't have a dedicated lawyer, unless there's some frivolous class action that doesn't truly represent the employees.

I think, we'd all be surprised to find that many "illicit" things aren't illegal at all, but rather would get struck down in a civil court if sufficiently challenged, and that much of our economy is driven by that.

They're not legal in CA

The McDonalds employees are not likely to know this. The contract itself is abusive, and its unenforceability is not a defense.

Is McDonalds really suing min wage workers who leave for Wendy's to get a better schedule or 25 cents more per hour? I get that they could but I can't see how that's ever a reasonable business decision.

Making examples of a few is a more efficient option than suing everyone. But this is insanity, and should be legislated against.

They most likely aren’t. But putting that in the contract can make workers think they can’t take that Wendy’s job. I cannot think of two entities with a bigger power gulf than McDonalds and a McDonalds worker, so the expectations must be calibrated accordingly.

Now I wonder what sort of judgement they could even get? Worker has to come back? Worker has to pay some fraction of the perceived losses of that restaurant? Worker has to pay some fraction of their wages?

And then would this even pass through the system?

I think the most likely judgement would be that the worker has to quit their job at the competing business.

If the employee were compelled to quit, unemployment couldn't go after the worker for the lost job, so they would want to go after McDonald's for 2.5 years of unemployment instead of .5 years for every worker they break.

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