Makes a ton of sense. Completely absurd for security guards and administrative assistants to have non-compete clauses. Just another way businesses were trying to reduce the willingness of employees to quit so that they can suppress wages.
But yeah, beyond ridiculous, as if a JJ employee is going to leak some crazy trade secret to Subway or whoever.
In France, the official term for a janitor was “surface technician”, which I previously considered to be the most condescending name for a job, but it has been violently dethroned by “sandwich artist”.
Reminds me of how Gallup made everyone sign a 6-month contract in an at-will state. If you want folks to stay for at least 6 months, then don't suck so much to work for. One of the cultiest places I've ever had the misfortune to work at.
They’re definitely not comparable to security guards in that sense.
> “Employers need to get creative about how to impose restrictions to protect themselves against individuals” in whom they have made significant investments, or who have been allowed access to trade secrets, to protect themselves against such employees leaving, said Maxwell N. Shaffer, a partner with Holland & Knight LLP in Denver.
The sort of healthy employee-employer relationship that retains talent.
There are legitimate reasons for actual non-competes in many of these cases, and CAlifornia for instance just requires you pay them for it.
Which in such a situation seems justified.
Lots of examples of malicious employers doing the latter, as you'll note the sentiment throughout the thread comments and laws intending to patch this bug in statute.
You might say that's incredibly unaffordable but that is the point. Otherwise the employer is robbing society of the value created in addition to stealing the difference between present rate and market rate + foregone opportunities.
What you seem to be advocating is to never allow a company<-> employee to have a non compete clause, even if the company is happy to pay for it.
Which yikes. Do you think what Levandowski did with Waymo/Uber helped anyone? Including ‘society’ overall?
Likewise your other example is an employee taking an employees money and their customers at the same time. It would have been sufficient to bar him from competing and working against the employers interests WHILE he was there.
If he had quit and called prior customers and said I know you do business with blank but I can do better would that really have been wrong?
Employers will just say "the no-compete compensations is built in to your pay".
The only ones I’m aware of would be trade secret laws, but they’re dubiously applicable to bare customer contact lists.
You can make contractual restrictions of course (company property), but good luck being able to prove they actually took it unless they’re really dumb. Merely contacting all, or many, customers for instance wouldn’t prove it.
Being able to show they work for competitor x is easy, however, as is showing they’re pursuing customers in the same space.
It’s much easier to win this kind of civil suit than a criminal case. The court can absolutely crush a business that is founded in this manner to compensate the former employer.
That something is a civil tort doesn’t mean it’s a criminal offense (what is generally referred to as ‘illegal’). Trade secret theft is illegal.
But trade secrets have a specific definition which can pretty much never plausibly include a list of customers.
From your link ‘9) “Trade secret” means information, including a formula, pattern, compilation, program, device, method, technique, or process, that:
(A) Derives independent economic value, actual or potential, from not being generally known to the public or to other persons who can obtain economic value from its disclosure or use; and
(B) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.’
Pretty hard to imagine a customer list meeting any of those criteria.
So long as you make a reasonable effort to keep it from being public knowledge, it meets the criteria you quoted.
In most court cases I’ve seen about this, it isn’t enough to keep it from being public.
It has to be protected from employees to the degree necessary to keep it a secret. It’s why all the song and dance around the ‘secret ingredients’ in KFC/Pepsi/Coke ‘secret recipes’ (that and marketing). If it was common knowledge at the company, even if it wasn’t public knowledge, they couldn’t use the trade secrets acts to prosecute offenders.
If everyone at the company knows who is on the customer list, including folks who don’t have a privileged need to know it, it isn’t a secret. It just isn’t public knowledge. That still means it isn’t eligible for trade secret protection.
So while yes, it’s possible - if they do that - it’s not at all common with how the information is protected in my experience, and it would be very difficult to actually prosecute anyone under the trade secrets laws because of it.
Civil lawsuit? Different burden of proof, different calculus. Tort law is about being compensated for a loss or injury, after all, and there is no requirement that such loss or injury have been from a criminal act.
That information however IS highly valuable, especially paired with knowledge of how a company is doing sales, how it is positioning itself internally strategy wise, etc. some of those things could be trade secrets, if adequately protected, but almost no one I know would meet such a bar with how they handle it. It would be at most confidential information, and could count as a NDA violation, but would be difficult to prove unless someone was really sloppy.
As to if it could be protected as a trade secret depends entirely on how it is stored, secured, what it contains, and who is given access to it.
But very unlikely. It has an actual definition [https://www.law.cornell.edu/wex/trade_secret]
As to if someone could sue someone else for damages related to breach of an otherwise valid contractual obligation, then of course.
As to if such a lawsuit would be successful will of course depend on a lot of factors, including if that obligation is valid under law, if anyone can show proof it occurred (and wasn’t say someone ‘using their extensive personal connections in the industry’), etc.
But that is an expensive, time consuming, and ultimately shitty time in court with few guarantees unless someone was really sloppy.
You go to jail for that. It's called "theft."
My company had us sign a ridiculous NCA. It pretty much made it impossible to get a job anywhere, after leaving the company; even if they fired you, or laid you off.
Their description of a "competitor" was so vague, that it could, literally, be applied to a 7-11, as they potentially sold peripherals that could be plugged into our devices.