Companies have the good faith belief that employees would be so outgunned in a legal fight that most of the time they won't even challenge invalid clauses.
* Anyone who was given a contract with a provision that the drafter knew was unenforceable can sue. * If they win, they get, punitive damages, actual damages, and lawyer's fees. * It is not necessary to alledge any damages, or even that the provision in question was ever relevant.
Do this, and there will be law firms looking and advertising for clients. For cases as obvious as the typical non-compete the law would be so clear that lawyers would have no issue working on contingency.
Employers can drive up litigation costs all they want. Plenty of law firms can handle it, and are already used to it; and at thd end of the process, the employer would just pay the cost.
I would also include provisions in the law to force employers to inform explicitly every other person who signed the contract that the clause is not valid.
Hah, there's exactly that in Poland wrt. consumer protection - "klauzule niedozwolone"