Comment by thwayunion | Hacker News Reader

Comment by thwayunion | Hacker News Reader

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> non competes can still hurt candidates big time once they go back to the job market because many companies actually have provisions to disqualify those coming in with the extra baggage of a non compete.

Get a lawyer, ensure it's not enforcable, then sign it.

If you're in CA, sign it. If you're in MA and there is no garden leave clause, sign it. Then do what you want.

When a hiring company asks if you have a non-compete, specify: "I am not bound by an enforceable non-compete". If they ask for specifics, explain and mention the law firm you consulted. This has always worked for me.

I suppose you could also just say you're not bound by a non-compete, and leave it at that, as that's also not a lie. If I sell myself into slavery in the USA, then I can -- without lying -- tell everyone I'm definitely not a slave. Because I'm definitely, absolutely, not. Non-competes are no different: if it's prime facie unenforceable, then you are NOT bound by a non-compete, full stop, end of story. But I like to be a bit more up-front.

> If candidate A and B have very similar skills and experience and A has a non compete and B doesn't, why would anyone bother with A?

I've admittedly never been in this situation -- at least as far as I know -- because my skill-set is pretty niche (ie, I am pretty sure that I have always known all the other people in the world who are interchangeable with me for a particular position when I get to the stage of negotiating the offer).

>Get a lawyer, ensure it's not enforcable, then sign it.

There's a lot of daylight (and a few thousand dollars in legal fees) between "would be thrown out upon casual perusal" and "is not technically enforceable, but we'd have to litigate in front of a sympathetic judge".

The issue has never, EVER been whether or not Jimmy John's non-compete is enforceable, its that a person leaving a Jimmy John's for a $0.50/hr raise at the Burger King across the street can't afford to litigate it, and the Burger King franchisee definitely won't pay to litigate it.

For those of us who can afford a lawyer to analyze a non-compete clause (and the barest of legal fees necessary to show in front of a judge such a clause), they aren't really an issue. But that's actually a pretty small subset of the population.

The biggest problem with non-completes is that they have been weaponized to suppress wages against people without resources to fight them. Fast food employees should never be subject to them; it's absolute lunacy that assembling a burger involves any truly special training or unique skill that a company should be able to prevent someone getting a better job across the street later that same day.

I'm not in favour of banning non-completes entirely since I think they actually serve some function for highly specialized and compensated positions, but I do want to see pretty high levels of regulation. Non-completes shouldn't be allowed for any position making less than 3x the median wage. Any position making less that that simply isn't special enough for a non-compete to actually be protecting actual secrets. Companies should also be required to buy out any non-complete time at the employee's total compensation rate, including the average of the last 2-5 years of bonuses (whichever timeframe is highest) and any additional perks (like health care in the US since that can be a huge expense).

> Fast food employees should never be subject to them; it's absolute lunacy that assembling a burger involves any truly special training or unique skill that a company should be able to prevent someone getting a better job across the street later that same day.

Are you sure this is really a thing? It seems dubious to me but I haven't been in fast food for 20 years so things may have changed.

The most famous example went down in flames so hopefully it’ll deter others:

https://www.cnbc.com/2016/06/22/jimmy-johns-drops-non-compet...

Totally agreed. My advice is targeted at laborers and employers who can afford the fight.

BTW, there's a lot of money to be made here by an enterprising lawyer. The laws have been moving fast and most companies -- even those that should know better and will get very little sympathy -- aren't playing by the rules.

You have to be careful with that. Sometimes unenforceable non-compete can be amended by a judge and become enforceable. I believe the term is “blue pencil” rule vs “red pencil” rule.

Reference: https://www.upcounsel.com/blue-pencil-rule

Inapplicable in my case.

First, the state's statute is extremely clearly worded. The amount of judicial activism required for me not to win some substantial monetary damages -- at least a multiple of garden leave -- would go far beyond taking a pencil to the contract; it would require substantially rewriting plainly worded statute itself. That's not a blue pencil; it's a sledgehammer to the constitution.

Second, I'm in an "equitably" state. A core claim of the counter-suit would be that I'm been deprived of a low-8-figure compensation package due to litigation. Lawsuits take years. No blue pencil can "reset" the contract to an equitable state without first evaluating that counter-claim. That's the point of the counter-suit, btw. I don't need the fucking money.

Anyways, given the composition of our judiciary, I think all of my previous and existing employers lack the balls to risk the precedent we'd be working to establish. Especially since, in order to establish that precedent, I'd settle for a Pyrrhic victory. (I have shitloads of cash, live a monk's life, and will burn the world down to kill non-competes. Corporations are hyper-rational sociopaths, and if you're going to work for one you need to play the game theory accordingly.)

That said...

1. IANAL.

2. I have a lawyer but my lawyer is not your lawyer.

3. Get a lawyer to review anything you sign, before signing.

> Get a lawyer, ensure it's not enforcable, then sign it. If you're in CA, sign it. If you're in MA and there is no garden leave clause, sign it. Then do what you want.

What if the law changes and now it's enforceable? What if you move to another USA state, or to another country, and it's enforceable there?

> What if the law changes and now it's enforceable?

Before that happened, I'd remind my lawmaker of both my generous giving and also how valuable my personal time and network has been, relative to any campaign donation, in terms of winning and keeping the seat.

If it happened anyways, I'd move my primary residence.

> What if you move to another USA state, or to another country, and it's enforceable there?

That's not how non-competes work in any US jurisdiction of which I'm aware.

Even if it were: if a company wants my labor -- and enough do that I'm not concerned about finding takers -- then they have to hire me in a state where I'm comfortable with non-compete law. I don't care about in office vs remote, but I do care about non-compete law. Companies shop around jurisdictions. In-demand labor should as well.

what if the people who hired you are total idiots and take you to court anyways?

Counter-sue for damages consisting of the total value of my foregone compensation package (which are typically 2-4 year packages). Triple real damages because enforcing a prime facie unenforceable contract is an unfair and deceptive business practice. I would be more than happy to be the test case for this novel theory.

My strong suspicion is that no competent employer has the balls to do anything other than settle the counter-suit (less about the $ amount than the precedent), and my even stronger suspicion is that I'd win the triple damages if the poor sops in legal were desperate enough for a severance package to try and fight.

If you’re in CO sign it, if you’re in WA sign it

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