Does a no-complete clause hold up?

[Lonesomedave]

Originally Posted by guy n. cognito

Dave, I question whether or not you are really an attorney. Because, honestly, any second year law student would know that everything is negotiable and debatable in court. Furthermore most attorneys are better readers than this, and would see that I've never said or inferred what you stated above. Rather I suggested that convoluting moral obligations with corporate legal documents is naive, especially in cases where employers consciously create documents that they know would not stand the scrutiny in court.

well, that's good rationalization...i give you an A for that.

as far as my being a lawyer....unlike you, i have never advocated a course of conduct that involves dishonesty.

anyway, while i may have been faking it for almost 30 years, it says on my law license that i am a lawyer....i would scan it and post a copy for all to see, but my scanner is broken

you can, however, check with the state licensing board, & will find that i am in good standing....

[guy n. cognito]

Originally Posted by Lonesomedave

well, that's good rationalization...i give you an A for that.

as far as my being a lawyer....unlike you, i have never advocated a course of conduct that involves dishonesty.

anyway, while i may have been faking it for almost 30 years, it says on my law license that i am a lawyer....i would scan it and post a copy for all to see, but my scanner is broken

you can, however, check with the state licensing board, & will find that i am in good standing....

Cool. PM me your name........

[Lonesomedave]

Originally Posted by guy n. cognito

Cool. PM me your name........

PM sent...

however, i've got news for you...if i were going to lie about that, i'd just send you the name of someone i know to be a lawyer and you'd never know the difference.

[guy n. cognito]

Originally Posted by Lonesomedave

PM sent...

however, i've got news for you...if i were going to lie about that, i'd just send you the name of someone i know to be a lawyer and you'd never know the difference.

Of course, President Nixon.

[fdeck]

Originally Posted by Turock

Sorry, I didn't realize that it is now considered "naive" to keep one's word. Maybe I'm just old.

What enforceable, ethical provision of a contract has anybody proposed violating?

[Turock]

Originally Posted by fdeck

What enforceable, ethical provision of a contract has anybody proposed violating?

You've read this whole thread and still don't know?

[fdeck]

Originally Posted by Turock

You've read this whole thread and still don't know?

From what I can tell, the OP has received a number of comments suggesting that the non-compete might be unenforceable, or that he/she should ask a lawyer about its enforceability.

[Turock]

Originally Posted by fdeck

From what I can tell, the OP has received a number of comments suggesting that the non-compete might be unenforceable, or that he/she should ask a lawyer about its enforceability.

One person says "I'll hire you under these conditions", another person says "I'll take the job under those conditions". Now when the talk starts about "enforceable, ethical provisions", who is really being the unethical one?

[hotsauce n eggs]

Originally Posted by Turock

One person says "I'll hire you under these conditions", another person says "I'll take the job under those conditions". Now when the talk starts about "enforceable, ethical provisions", who is really being the unethical one?

Considering that an employee is usually between signing a capricious and unethical contract and not having a livelihood(especially when one takes into account the ubiquitous nature of these contracts), an argument could be made that such agreements are signed under duress, and as such are invalid anyway.

[two fingers]

9 out of 10 times all you have to do is show "hardship" to the court and you can get out of it. This was the topic of my term paper in Business Law class last Summer. With the guidance of my instructor (also the local assistant DA) I learned that most of the time your former company won't pursue it in court anyway. But if they do, all you have to do is prove to the court that it would be a major hardship to move your family to avoid problems from the non-compete. If you can show you have a job lined up, and that it would be a huge PITA to move, the courts will almost always side with you on it. However, it's a big pain as well to go through all of that in the courts. And most potential employers won't wait for you to hash it all out in court before they move on to the next potential employee.

But the short version is that most of the time you can wiggle out of it, but it's a big ordeal to do it.

[guy n. cognito]

Originally Posted by Turock

One person says "I'll hire you under these conditions", another person says "I'll take the job under those conditions". Now when the talk starts about "enforceable, ethical provisions", who is really being the unethical one?

Life and legal matters are rarely that simple.

What about situations where the contract violated state labor laws? What about the scenario in which the employee is surprised with the agreement after agree to take the job (and quitting their former job?) What about the scenario in which a current employee is required to sign one for continued employment? What about the scenario in which a current employee's duties are dramatically changed and their income affected because of it?

[SBassman]

I don't have anything to add to help, but just to vent:
I have had to sign them in the past, and I hate them.
Some forms of them should be illegal.

[MarkMgibson]

Originally Posted by guy n. cognito

Don't be naive.

These types of non competes are becoming more and more common, and they are being forced upon employees that have no management role and hold no company secrets. We can pretend they are voluntary, but tell someone that needs a job that they can either sign it or leave, and see how voluntary it feels. In many cases, these documents aren't legally enforceable, but the employer intends to use it more inhibit someone from leaving than they do to protect trade secrets.

In some cases I've experienced, employers require existing employee to sign one as a condition of continued employment. It's illegal in most states, but they get away with it.

While I'm not a lawyer, that's my take on it as well. A contract is supposed to benefit both parties, but these types of contracts just seem like intimidation to me. Do what you have to and support your family - if the firm is taken over, or goes into receivership, I guarantee they won't give a stuff about you - they rarely do.

[Turock]

Originally Posted by hotsauce n eggs

Considering that an employee is usually between signing a capricious and unethical contract and not having a livelihood(especially when one takes into account the ubiquitous nature of these contracts), an argument could be made that such agreements are signed under duress, and as such are invalid anyway.

Yeah, yeah... those damn, evil, big corporations.

[Indiana Mike]

Originally Posted by guy n. cognito

We have bank tellers that were required to sign them..........5 years with "any" competitor with no geographic limitations.

we live in a supposed capitalistic society.

This type of corporate behavior does nothing but attempt to squash capitolism ,competition and freedom

[LiquidMidnight]

Originally Posted by Sequimite

EXCEPT in CPA firms where the issue is taking customers to a different CPA firm.

That's what I meant. Guess I should have been more specific. I was just trying to think of an example in which you're in a position to take clients/customers to a competitor.

[LiquidMidnight]

Originally Posted by Lonesomedave

you act like both parties are not on equal footing at the time of employment....sorry, they are.

LMFAO!!!

As a career-development/HR kinda guy, I find that completely hysterical. I'm not anti-business/employer, but the idea that employees and employers are always on equal footing during the recruitment and selection process is absurd. We're not complete agents because we're always bound by some sort of external circumstances. The idea of having someone sign a non-compete agreement and then still treat them as an employee-at-will is not an equal exchange. It's no different than when employers were allowed to have job candidates sign yellow-dog contracts. Why did employees sign yellow-dog contracts? Because they needed a gig!

If you get a chance, read Robert Hale's article, Coercion and Distribution in a Supposedly Non-Coercive State. Hale does a pretty good job at dispelling the "everyone's a complete agent and is totally equal in a free-market" myth.

[SBassman]

Originally Posted by Turock

Yeah, yeah... those damn, evil, big corporations.

What's that supposed to mean? This stuff Is evil.

It's hard enough making a living these days. Nobody needs this nonsense piled on top.

Outside of senior execs and chief scientists sharing secrets, none of the rest of this should be legal.

[fdeck]

Originally Posted by Turock

Yeah, yeah... those damn, evil, big corporations.

Now we have to start being politically correct when talking about corporations, to avoid hurting their feelings? What does this discussion have to do with corporations? An employer could be a sole proprietorship or general partnership, of any size.

The potential for abuse is exactly the reason why the states recognize that such covenants have to be "reasonable" in order to be enforceable. And if it's not enforceable, then it's not a contract.

Signing a contract that both parties know to be unenforceable is as unethical as agreeing to put up with harmless intimidation.

[fdeck]

Here's why there is a distinction between a non-compete and a non-disclosure: Because there is a difference between trade secrets and goodwill.

Suppose you work for a machine shop that makes intricate screws and parts. Look at the two cases:

1. You are a machinist, and never interact with customers. You can protect all of your employers trade secrets, simply by not revealing them to your next employer. This is prevented by a non disclosure agreement. It is also protected, quite frankly, by the typical ethics of any profession.

2. You are a salesman for the shop. When you visit customers in your territory, they either know you personally or have heard from you. Some of them have your cell phone number and call you directly when they need something. Some of them don't care who they buy from, but they buy from you because they like working with you personally. You possess goodwill which belongs to your employer, and which you are taking with you when you go to work for a competing machine shop in the same territory. This is prevented by a non compete agreement.