Comment by _delirium | Hacker News Reader

Comment by _delirium | Hacker News Reader

I'm curious how this even came up. Did the prospective employee make the mistake of actively asking the former employer for permission? Not many companies are monitoring their former interns closely enough to even notice where they end up later. Even if they did look, they wouldn't typically hear about it until past the interview stage, unless I'm missing some reason the interview invitation would be publicly accessible.

A non-lawyer guess at a reasonable course of action: Unless you're a high-level employee with particularly sensitive knowledge, it's probably not a good idea to try to pre-clear future employment with the former employer. That just gives them an excuse to over-interpret the scope and tell you "no". Instead it'd make more sense to evaluate compliance yourself, and if in your judgment the job doesn't violate your agreements, go ahead and take it. No reason to go out of your way to even tell the former employer about it; the odds are heavily against them noticing and caring enough to sue a low-level employee.

The candidate withdrew his application, citing his noncompete. I followed up with him to verify there wasn't a misunderstanding, and he forwarded an email with his employer saying there wasn't.

Would the former employer have sued him directly?

At some point, civil disobedience is the right societal answer to this kind of thing, even if it's a bad choice for an individual.

I'd be willing to get sued over a non-compete (if it were genuinely a case of not competing, and where I thought a judge/jury would support me, especially if it were a very telegenic case like this), but I can see where a 20 year old kid wouldn't.

I know this is not the point of the post, but how confident are you that this was the real reason he declined?

This non-compete sounds rather unenforceable to me.

They rarely are, especially in california. My guess would be the same, that there was some other reason and it was more of an excuse. Maybe he wanted to show loyalty to the other company.

He was scared. Just like that. You know all that, but when you face a lawyer or an experienced abusive superior, it's hard to be reasonable. Especially if you're not experienced in dealing with people like that.

Still in college is not the best time to challenge a corporation and risk a lawsuit. Besides having better things to do, college computer science students are not known for their wealth, lawyers on retainer, or breadth of legal knowledge.

This is just silly, and no doubt unenforceable. Hire Bob and as part of his employment agreement let him know you'll defend him in court if he gets sued. Then file a motion for declarative relief with your local court asking them to provide you with a get out of court free card.

Non-competes aren't enforcable in California, but in much of the US they are. There was an article on HN about a woman (in Boston?) who'd been fired from a position because of a non-compete.

In that case it never made it to court, and the people trying to enforce the non-compete would likely have lost if they had pushed.

The courts do not look favorably on non-competes. So enforcing them is very hard. Its doable at the executive level but for someone who was simply a student intern one summer I would be flabbergasted if the court upheld it. You would have to prove that the student learned enough in the summer to materially impact the business in a negative way. I think it is so preposterous that you could get the declarative relief writ which basically says "If you try to sue these guys we're going to rule against you, do don't bother."

That would make a lot of sense, but it isn't the reality. Here's the previously posted article: http://articles.boston.com/2011-07-03/business/29733744_1_no...

TL;DR: Game tester lost their job, and couldn't work for another gaming company because of non-compete. Analysis indicated non-compete is enforcable.

Unfortunately they didn't litigate the non-compete in court. That it existed was sufficient to get the new employer to fire them.

Generally if you look at the litigation history of non-competes you get a better sense of what is and is not enforceable in various jurisdictions. Had the game studio asked their in house counsel if the non-compete was likely to prevail in litigation, my intutition is that they would have said that it would not.

In the referenced game tester example the fact that the previous employer laid off the employee would work in the affected employee's favor in any jury trial.

To be clear, I know that non-compete agreements are effective at preventing people from working at competitors, but before you write yourself off because you've signed one check the case history in your area to see if they were upheld in court.

You are correct that jurisdictions vary significantly.

But I believe the Massachusetts is pretty strict.

eg, here the legal department of a hiring company said the non-compete on a laid-off worker was probably enforceable:

Bob Balaban of Lexington took a software engineering job in 2008 that required him to sign a two-year noncompete agreement. During the recession of 2009, he was laid off. Balaban had several interviews with managers at a prospective employer, but it had a business unit that competed with his old employer. “They informed me that their legal department advised them against hiring me because of that

Courts find them enforceable, too:

And these cases do sometimes wind up in our court system, taking up judges' time. Earlier this year, a judge blocked a South Shore hair stylist who was fired from one salon from taking his blowdryer over to another salon.

http://www.boston.com/business/technology/innoeco/2011/09/no...

IANAL, but I think your intuition might be dangerous.

The original article talked about New York, on the topic of New York non-competes:

"Editor: Doesn't much of New York law disfavor non-compete clauses in employment contracts?

Klein: The court cases do say that non-compete clauses are disfavored, but that does not mean that they are unenforceable. In New York, non-compete clauses in employment contracts will only be enforced to the extent reasonable and necessary to protect valid interests. The case that is most often cited for this standard is BDO Seidman v. Hirshberg , 93 N.Y.2d 382, 712 N.E.2d 1220, 690 N.Y.S.2d 854 (1999). In deciding whether a restrictive covenant is reasonable, a court will examine certain factors relating to the length and scope of the non-compete that bear on the employer's legitimate business interests and the extent to which the employee still can earn a living. Also, New York is a "blue pencil" state, so even if a covenant not to compete is too broad to be enforceable as written, a court has the power to modify it - particularly if the contract indicates that it was the parties' intention that the court be able to do so. In short, the recent case authority indicates that New York courts are enforcing covenants not to compete and benching employees when the legal standard is met."

From http://www.metrocorpcounsel.com/current.php?artType=view&...

I don't think 'being a summer intern' meets the standard but as we both are not lawyers we cannot say for sure. I know that I would offer to defend this guys if he got sued by his former employer but that is just me.

One idea is maybe someone at the hiring company called the former company to follow up on a reference. Usually, I'd expect that to come later in the process, but maybe not.

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