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Comment by hristov | Hacker News Reader

Unfortunately sometimes laws are made not for the best benefit of society as a whole but for the benefit of a powerful or well positioned minority. Now check out the Colorado law. It says that non-competes are forbidden except for four exceptions. Check out the fourth exception:

4. Contracts with executive and management personnel and employees who constitute professional staff to executive and management personnel.

There is an actual clause covering secretaries! So you can be sure your secretary will not go working for a competitor. You do not have to think hard to guess who had this law written for themselves.

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… or it could (reasonably) be that secretaries to executives tend to have access to highly privileged information, much more so than most employees of the company, on a level similar to the executive themselves.

You're right, instead of treating them(secretaries) like a trusted confidant and rewarding them well financially - thus ensuring their loyalty (even after their employment!) and compensating them for their truly valuable contribution - we should instead create a law that hamstrings an entire industry and continue to bend the knee to the rich and whatever is convenient for them.

I’m no fan of noncompetes — and I would also rather generate (and have previously generated) loyalty through compensation, goodwill and camaraderie, but this entire argument strikes me as disingenuous.

- The almost conspiracy-esque malice of bending ‘to the rich’ that the grandparent poster was talking about is much more easily explained by ‘these people also have unusually privileged information’.

- I think the thinking (perhaps unfairly) went like this: Whilst there is such a thing as domain skill, a noncompete should affect a secretary or assistant minimally in practice, as they generally have a broad, non-domain-specific skillset, unlike the executive they report to.

> Whilst there is such a thing as domain skill, a noncompete should affect a secretary or assistant minimally in practice, as they generally have a broad, non-domain-specific skillset, unlike the executive they report to.

These aren't what people think of as 'secretaries'. These are highly skilled executive assistants with WAY more domain-specific skills than you're giving them credit for. I have friends that do this for C level executives. Including at $100bn+ companies. A non-compete within a given industry would severely hamstring their future career.

Ugh, I think this is the curse of Internet comments, where you can never include enough disclaimers.

I knew this (correct) case would be made as I was writing my comment, but thought I could avoid including a sub-clause to deal with this topic.

So yes — I know folks like this too and fully acknowledge the skillset involved. Some of those folks have a deep skillset and yet don’t have any particular knowledge such that a noncompete would make sense to keep them from spreading it.

Per my comment I don’t like noncompetes — but I do think that this is the thinking that was used to define policy around this.

I also do think that there is an exclusion zone, whereby folks are either:

- Non-specific and not affected by this materially.

- Highly skilled and /would/ take material privileged information with them.

- High skilled and /would not/.

I suspect the last category is just elided in the thinking that led to this coming to be.

At the risk of deflating this highly-charged discussion, I think the reason for the "executive staff" carve-out might be a little more ho-hum: they are often employed via the same contract as the executive they support.

Yup -- I actually am inclined to agree with my sibling commenter all the way up top.

I don't think the answer here is necessarily all that clever -- charged conversation notwithstanding, I just wanted to get at the fact that it's likely /not a conspiracy/.

I would love to deflate this mess of a subthread. :)

> At the risk of deflating this highly-charged discussion, I think the reason for the "executive staff" carve-out might be a little more ho-hum: they are often employed via the same contract as the executive they support.

Huh? The VP of Engineering has a hefty stock plan, a guaranteed bonus, and a three-year contract. Do you really think that her secretary has anything comparable? Heck, her secretary doesn't even have a three-year contract.

Among my friends I have talked to about this previously, they do not.

It depends on the executive contract. Some of them will offer a guaranteed number of support staff of the executive’s choice (now whether the admin has to negotiate a separate contract with the exec, I don’t know) and you’ll often see admins move along with the exec from job to job.

But I don’t know if that is why the carve-out is there or not. I doubt it, but some exec contracts absolutely allow for a guaranteed support staff of the exec’s choosing.

An exec's guarantee of support staff, even the support staff of her choosing, doesn't guarantee the support staff anything.

I said "employed via the same contract," not "a comparable contract." Meaning, the VP's hiring contract says "you get $X/yr to hire some staff".

The VP's contract is irrelevant when we're talking about staff.

The VP's contract reasonably protects the VP from the consequences of a non-compete. The VP's staff has no such protection.

> The VP's contract is irrelevant when we're talking about staff.

No it's not. If the VP's contract says "The company will hire an assistant for you" then the assistant negotiates with HR for their salary like a regular employee. If the VP's contract says "You get $100K/yr to hire an assistant" then the assistant can't get a raise until the VP's contract changes.

> The VP's contract reasonably protects the VP from the consequences of a non-compete.

It might, or it might not. Contracts do whatever they say they do. If the contract says "You and your staff can't work for any of our competitors unless it's a leap year and you say Pretty Please" then that's what it says.

More generally, above a certain level, executives are more like a small agency than a single person. If you hire Tim Cook to be the next CEO of your startup, he's going to bring his current assistant(s) with him, he's not just going to inherit whoever the old CEO's assistant was.

I don’t see it as the governments job to ensure the loyalty of those with privileged information through legal force, that should be ensured through higher salaries. It’s an example of a law which exists purely to facilitate inequality and to ensure that people paid so little they will never become homeowners can be threatened with joblessness and poverty if they get a competitor to increase their salaries because of the value of the information they know. These non-competes make it companies can expense enforcing loyalty through legal force to the public purse, instead of actually having to pay for loyalty.

Most laws revolving around protecting corporate secrets are enablers of inequality that the public pays for. It’s one of these services the government provides to business that it really shouldn’t.

As per line one of my comment — I also don’t much like non-competes.

The only reason I commented was to dispel and push back on the conspiracy-esque style that the parent commenter used to characterise /how/ the law got written this way.

I don't really understand what noncompete clauses are for. I would have thought that the law already provides for suing an "unfaithful servant". Surely when you take paid employment, there's an implied obligation to take due care of trade secrets.

The last contract I signed (1 sheet of A4) bound me not to take work with a "competitor" for 6 months after quitting. Since the employer's clients were all local, I took that as meaning I was not to take a job with a web-shop in the same town. And I thought 6 months seemed reasonable - after all, we weren't developing patentable inventions, we were just making websites.

[Edit] I think the purpose of the clause was mainly to stop me taking customer lists to the competitor. I'd have thought that fell squarely into the "unfaithful servant" bag - it's a scummy way for an employee to carry on.

> I would also rather generate (and have previously generated) loyalty through compensation, goodwill and camaraderie

You’re absolutely right. I’d happy sign any non-compete contract as long as _I’m paid my salary throughout the non-compete cool-down period”

So do legal teams, anyone that touches or creates IP, accounting, IT staff etc. NDAs suffice and "they have access to information" isn't a reason to use anticompetitive laws against secretaries. If a company is worried about "highly privileged information" leaking because an employee is now answering phones at another company, then they've got some serious security problems that non-competes won't fix.

> or it could (reasonably) be that secretaries to executives tend to have access to highly privileged information

So do accountants and lawyers. But do try and enslave them with such a law and watch as the world erupts.

In relation to the exceptions:

Even when one of these exceptions applies, Colorado courts insist that the non-compete provisions be reasonable in duration and scope.

the word "reasonable" is the largest loophole ever invented, aside perhaps from "interstate commerce".

This is a common misconception. “Reasonable” does have a specific meaning in many legal contexts, and courts typically have a more specific test for what constitutes “reasonable”

For example, a state that has a law which says non-competes much be “reasonable”, may be enforced by the courts as “1 year in duration and within 50 miles”.

The problem is that 50 miles seems reasonable on its face; however, it ignores context.

Let's say you work for a consultancy in a large metropolitan area covering 5MM+ people and this area has 100+ consultancies. There are many groups of these consultancies and they all service different verticals. There are no other major areas with concentrations of business within hundreds of miles (see middle America).

A person may have been working exclusively within the healthcare vertical at one consultancy and would move to another to work in a completely different vertical (e.g., retail). Would 'reasonable' cover this nuance? Probably not, particularly not in the favor of the worker.

Yes, I have lived that exact situation before and I think non-competes should be outlawed entirely. I’m just saying that the word “reasonable” doesn’t make a law open-ended.

Not open-ended. just subjective enough to drive a trucking convoy through it.

It's only subjective until the judiciary establishes a standard test or interpretation. Which they have done in every state that has language like this in their laws.

In practice, you can call up a lawyer in any state that requires non-competes to be "reasonable" and they can tell you more specifically what the court will enforce.

I'm pretty sure secretaries know a great deal about their boss's business. It behind that, I assume executive staff can transition industries a lot easier than most employees.

Too clever by half, I think.

Why would rich and powerful executives lobby to make sure there is an 'exception' that keeps them bound by these contracts?

One answer: It helps them. If you're in demand, you can extract more money by promising to keep the secrets. This gives "executives" and "secretaries to executives" a special way to extract a little more.

> professional staff to executive and management personnel

I don't see how that's just secretaries. As a programmer I am:

a. A Professional

b. Staff

c. I work for Executives and Management Personnel.

So this basically means programmers are also in this bucket?

I'm not versed in secretarial terms-of-art, but given the unusual grammatical construction, I believe the "to" you left out of that list is actually doing the heavy lifting. Assumedly there is a difference between working under executive and management personnel and being staff TO executive and management personnel.

Though a real quick search did turn up a case where what the lawmakers intended by "management" was in question, so there is a distinct possibility they wrote their terms badly. It's weird reading a law that introduces terms like that without defining them.

Sounds like bad law whether I say FOR or TO, both programmers and secretaries work for them. I am still professional staff to their whims. If they want me to dump medical records in this way or another way, I am required to do so towards their whims.

I feel like the lawyers writing the law felt bad about saying: The people directly responsible for scheduling lunches and making sure executives have time to poop between calls.

I think the reality of it is that secretaries are a form of excessiveness and they are afraid of losing that.

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