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Comment by eclipsetheworld | Hacker News Reader

In Germany we have non-competes, however, the employer has to continue paying the ex-employee (a part of) their salary for the non-compete to have any effect.

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Even that seems too much in favor of non-competes. Instead it should simply be treated like another job that I can quit at-will.

If you don't want me to work for a competitor, pay me some amount of money we negotiate like a salary. It's up to you if you think it's worth enough to pay me not to work, and me to be paid enough not to advance my career how I choose during that time.

This seems equivalent to simply retaining the employee.

Yes, exactly. As it should be. If you don't want me to work elsewhere but also don't want me to work, that's on you to figure out. Compensate me adequately to do nothing or let me be. If companies are unwilling to do that, perhaps it's not a real concern.

Agreed, but how is that different from what the person you replied to said? I assume they can't pay someone for their silence against their will. Or maybe I'm wrong.

If non-competes are enforceable by the German style listed above, the employee forced silent by the non-compete, even after they are done working, but the company is also forced to pay them.

However, in that case, the company has two options: Forced non-compete with whatever percentage of salary is forced by law, or don't do a non-compete at all. While the employee has only one option: Whatever the employer chooses. Similar to most of the US (barring a few states) except US employees don't even get compensated.

Meanwhile, if employees aren't forced to accept non-competes, the employee and employer can work out a deal or not. Given that as far as I know, California employers don't regularly pay people their TC not to work after they quit, it seems that non-competes are more of a threat against employees than something actually necessary to prevent trade secrets or whatever.

Although even outside of California, I don't know anyone personally who had a non-compete enforced after quitting a job (unless this happened and they didn't tell me).

In France a non-compete clause must be attached to financial compensation or it is considered void.

Imagine that the employer does not have a non-compete in place with her current employees. In the US, she may offer a single, token amount in exchange for signing an agreement containing a non-compete clause. This could, for example, be described by the employer as a "bonus". It does not have to be reasonably-based on the amounts the employee might gain from working for a competitor. It could be much lower. The employer could make signing the agreement a prerequisite to continued employment. Arguably the purpose of such a "bonus" is primarily to protect the employer against challenges to the enforceability of the agreement, not as an incentive or reward to current employees.

You can always turn it down. Contracts have whats called consideration.

I've seen companies try to get away with NCA/NDA by tying severance to signing one. I would have to be truly desperate to take the money over the health of my career, yet that is exactly what a lot of companies rely on.

In the US, I have never seen a severence agreement that did not include confidentiality provisions. However (IMO) the inclusion of non-compete provisions has become more common across all levels of employment and all job categories. The vast majority of US workers will sign these agreements. That cultural trend makes it (a) easier for employers' legal counsel to manage any issues raised by the minority and (b) more difficult, if not impossible, for the minority to negotiate.

Yeah, having been in that situation, my thought is that negotiation is worth a go, but the real response is having a good BATNA. Yet another reason to have savings at the 6-months-of-expenses level.

To be honest, this always made the most sense to me. If they want a non-compete, fine, but it should have money attached because it has value they should pay for.

They just want free sacrifices for nothing or for firing you.

How much pay is given for this? This doesn't really give the desired effect unless the payout amount is guaranteed to be a substantial portion of salary. If a company can just pay $1/year for a non-compete then it is as good as nothing. In theory an employee can negotiate their contract but in practice it is much harder to do this since it involves lawyers and the power balance of the relationship is fundamentally unequal. Having a blanket ban on non-competes or requiring a significant percentage of compensation is needed to make this work.

Same in Spain.

Sadly, this concept somehow feels very much counter to American culture.

I don’t think this would ever be implemented here.

It is implemented in certain areas. For example, "gardening leave" is the term used for similar situations in finance.

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