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Comment by endisneigh | Hacker News Reader

non-competes should be banned, yes.

another interesting question is - should contracts that [disallow simultaneous full time employment] or [ban moonlighting/side projects] be allowed?

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No. My obligations to the employer end at the termination of my employment and whenever through the course of the day I'm not working for them.

How I choose to spend that time is none of their business so long as I don't do anything that can be construed in a way that implies I represent them.

For example, if I say, to be silly, work at hotdog on a stick and do adult dancing with the company provided uniform, that would probably cross the line. If they then fire me and I continue to do the dancing in uniform, fair game.

Unless Hotdog on a Stick has a Class 41 trademark on their uniform / logo, in which case you might be committing trademark infringement.

I'd like to claim it's always fair use/parody regardless - nobody could in good faith, mistake an adult entertainment stage for the iconic restaurant.

The difference is in my obligations to my employer, which are released when I am.

I'm certainly not a lawyer and this is all totally unfounded intuition. But that was also the terms of the discussion

In a much more mundane scenario, I treated the company provided clothing as company property and returned it when I left the role. I doubt they cared, but my position was that I didn't care to ever think about it again, so I did the easy thing and stuck it all in the locker.

If they don't have a Class 41 registration, I believe this is the legal dogma – but if they do, no amount of fair use or parody lets you use their mark on a Class 41 service without authorisation. Fair use / parody is US copyright, not trademark.

I tried to check whether Hotdog on a Stick had Class 41 registration, but USPTO's TESS has got to be the worst trademark search system I've ever used. I've seen more distinct error pages than useful results, and can't even find their Class 43 registration.

It's voluntary (and, indeed, probably at-will) employment on both sides - if you want to work full-time at two jobs, then find two companies that are OK with it. The problem with non-competes and anti-disparagement is that they bind your behavior after you're no longer employed.

> non-competes should be banned, yes.

There isn't really any problem with them if they are properly compensated. Which isn't to say they are a great idea, but not worth banning if it is a contractual agreement on both sides.

Yes. It's odd how in the finance world, there are often non-competes, but they call this "gardening leave." The employer has to pay the employee that's leaving their regular salary for the time that they're encumbered. For some reason in the software world, it's fairly customary for these to be signed with essentially no compensation.

It’s required in Massachusetts for all contracts since the law passed in 2018, although I’m sure a number of my previous out of state employers would be surprised if they try to enforce their non compete, especially the ones that weren’t chronologically or geographically bound.

In practice it means companies only enforce their non compete on people who they really don’t want working for competitors, but they get to make that decision at the point of the employee quitting, rather than having to make the decision up front. It’s minorly worse than just blanket banning non competes but not enough that I think it’s worth the Massachusetts legislature to spend time on it, especially if the feds end up doing a blanket ban

There are market externalities to two parties agreeing not to compete. Unlikely to be significant in larger markets with many independent service providers, but definitely of potential concern in smaller markets--e.g. rural dentists. The externalities could swing positive or negative--non-competes may be required to maximize the number of rural dentists--but still something to keep in mind either way.

> non-competes should be banned, yes.

I like my non-compete. I'm a highly paid professional with rare skills/experience, I negotiated hard on my employment contract with multiple rounds of edits in consultation with my employment attorney, I will generate and be exposed to valuable trade secrets during my employment, and I look forward to being paid millions of dollars to sit on my ass for a couple of years if/when I eventually leave.

Should it be banned? Seems fair to me. Or you just mean noncompetes that don't include monetary consideration, or which don't establish protectable interests? In many jurisdictions those are already unenforceable.

> and I look forward to being paid millions of dollars to sit on my ass for a couple of years if/when I eventually leave.

Executive level employment contracts are kind of not relevant to this thread.

Totally different situation that you can’t compare to the average non-executive worker.

Well, I guess all I mean to highlight is that a blanket ban might be sub-optimal versus requiring some minimum bar of fairness and consideration of noncompetes. After all, if the situation outlined above seems fair to us, then I feel like we'd have to concede that it would also be fair for the "average worker" if only such workers got similar terms (not necessarily millions of dollars, but commensurate with their normal pay) and had some negotiating leverage going into the agreement.

There is already plenty of precedent for overly lopsided/one-sided contracts not being valid/enforceable (and indeed many noncompetes actually aren't valid for exactly that reason), so I would have no problem with a law that makes the standard explicit, rather than relying on litigation and jurisdictionally variable case law to sort it out as happens today. Compared to a blanket ban, requiring employers to pony up some "fair" cost and to weigh that against the benefits to them of a noncompete may actually be better for workers overall.

Even if there were a blanket ban, I think corporate lawyers would quickly find ways around it for special cases (e.g. VPs, c-level, etc).

For example, you could ban blanket non-competes but not ban non-competes where very strict criteria are met, or having an exec agree to pay a [an insanely large penalty] if they choose to go work for a competitor.

That is very, very far from the typical experience, assuming it's even real.

> assuming it's even real.

Sir or Madam, you question my good faith!

I think an employer should be able to require that. Expecting the attention of someone 40 hours a week seems reasonable.

Beyond that it is another matter IMO.

> Expecting the attention of someone 40 hours a week seems reasonable

Why should the company be able to restrict your ability to do other work beyond the ability to fire you for cause if it's interfering with your ability to do your job?

I find it funny that there’s a group of people who say “20-30 hour work weeks result in major productivity gains” meanwhile others say “I want to work 2x 40 hour jobs!”

In other words, should an employer require you to have work life balance by not having more than 8 hours of work obligation per day?

The common answer to this is “it doesn’t matter as long as the work gets done” but I don’t buy it. Engineering isn’t like flipping burgers at McDonald’s. Output is impacted by overworking.

> I find it funny that there’s a group of people who say “20-30 hour work weeks result in major productivity gains” meanwhile others say “I want to work 2x 40 hour jobs!”

You find it funny that different people have different needs and wants?

> In other words, should an employer require you to have work life balance by not having more than 8 hours of work obligation per day?

An employer should get what they pay for -- which is the value of the labor and time of the employee. No more and no less.

Would it then matter if they are a competitor?

You raise a good point, that both moonlighting and non-compete clauses provides employers the ability to fire employees to mitigate risks associated with simultaneous work for a competitor (theft of trade secrets, corporate espionage, etc...). I'm not sure what the correct answer here is, but I'd err towards the burden of proof being more on the employer to show that the employee contributed to a direct competitor using insider information than the blanket clauses we have now.

They used to require sun up to sundown every day with out a day off. Workers, especially bakers bled for 40 hours. And we see today that people only doing 4 days or 32 hours a week are at least just as productive as 40 hours.

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