Part of the problem is that people don't -think- about what they're signing. If they did, there would be a lot less crap that goes on.
But non-competes are one of the few things I don't disagree with. It's only a year, and it's only that 1 industry. And it's designed to prevent people from giving away business secrets to the new company. The kind of person who would accidentally give away business secrets is the very same kind that doesn't pay attention to what they're signing.
I have both signed non-competes, and refused to sign them, when the situations were acceptable and unacceptable respectively. If, in her situation, she didn't think she would be privy to business secrets, she should not have signed a non-compete.
And finally, it's not like she can't get a job elsewhere. That she chose to stay in the same industry was her fault. If she wasn't privy to any business secrets, she doesn't have any more experience in that industry than any other.
Oh please. You jump through all the hoops during the interview process to get the job and then it comes down to the final part where you have to sign a contract as condition for employment.
This is where the thinking comes in. I've had these contracts before. Fresh out of school, my choices were sign this and take a position in the career I want and studied for or continue bussing tables. The employer loads the contract with enough ominous legal mumbo-jumbo that it can be dangerous for you but not so dangerous that a court would take one look at it and toss it for being very one-sided.
Most people aren't rockstars, they take a job because they need it and it might be the only offer they've received in weeks if not months. There is a huge world of difference between your typical entry level job and your typical C-level, Mark Papermaster type of position. Most people don't have a company like Apple going to bat for them over NCAs.
Like you I've also questioned NCAs and you can make small adjustments if you need to. And if the company wants you bad enough they can strip entire sections. But your typical job just wants a warm body in a world of interchangable warm bodies, make too many waves and they might think it's better to replace you with another warm body.
I absolutely agree. For that reason, I've made non-competes and claims of IP I create on my own time with my own resources one of the first things I ask about. Invariably, the bosses I've had have reassured me that the scope of either would be narrow and only what's necessary to protect the core business interests of the company. Invariably, I've been presented with a thick pile of papers full of absolutely ridiculous claims over IP, restrictions on what I can do on my time and non-competes that would make me unemployable.
However, by asking long before ever being offered a job of time it puts me in a much stronger negotiating position when the time comes. Thus far, I've refused every single contract preventing me from working in my field and/or preventing hobby projects related to my work. Unfortunately, that sometimes means leaving promising companies.
I wish I had thought of that. Usually, the only time I even think of NCAs is when they send me the employment packet. Then it becomes an awkward dance of asking questions, them asking their lawyer, and you trying not to ask for so much that they might change their mind and go with candidate B.
I interviewed for a job and got accepted. There were no contracts until I was hired, gave my 2 weeks notice at the former job, and then on the first day was presented with a non-compete to sign just as "routine paperwork". I didn't sign, but had already gave notice at the previous job. Luckily I was single, with no family or debt, and found a near-minimum wage job as an electrician's helper. That was 5 o 6 years ago, I shudder to think what I would do now in this economy. What happens when you are presented with a non-compete after a day or week of being employed? If you quit, can you get unemployment benefits? It's a hard situation. I live in Louisiana, btw.
An edit to the above: I tried negotiating in a respectful manner but didn't have much leverage after quitting my previous job and being told "What are you, a lawyer?"
I had something similar happen. A month or two into a job (which I relocated for) they notified me that they had 'forgotten' some standard paper work, one of which was a non-compete that said, essentially, that I couldn't work in tech for a year after leaving the company.
It's a very nasty situation. I had incurred what was significant expense for me at the time moving and my previous position had been filled. It was very early in my career, so getting a job would have taken longer than the meager savings I had time to accumulate by that time.
So I signed it. I consider having savings enough to be without work for a year, at minimum, over crap like this is a high priority for me. So also is not being at the arbitrary whims of the employer in a fairly one-sided power dynamic.
In this case you might have had a out if you could have convinced a judge/jury that their lateness made it from a real contract, "you sign away these rights in return for a job" to "... in return for keeping your job" which doesn't count.
Iffy in your case, but it's not uncommon for companies to e.g. get new financing from not so clue-full investors who want to [ fill in the blank ] the employees.
Of course, if you sign it anyway under those conditions the mere threat of a lawsuit can prevent you from getting hired (keeping a low profile helps a lot there) or starting up a new business.
IANAL, of course, but I read that non-competes can be enforced in California if they were valid where they were signed. In other words, you can't nullify a non-compete by moving to California.
Sorry about the no cite on that, I think it was from a Time magazine article a few years ago.
To my memory, this is not true. California says "they're null and void within our borders and that's that".
Rather like slavery, come to think of it, the big issue of the status of a slave who escaped to a free state. Dred Scott is not considered to be one of the finer moments in US Supreme Court history.
Are you sure you're not remembering a case that falls under the exceptions to California law?
"Who wins often depends upon a race to the courthouse. For multi-state employers it is often a rush to the courthouse to determine if a non-compete agreement is valid. The employer's strategy is to get an order outside of California in their favor. The employee or California prospective employer's strategy is to get an order within California in their favor. In the face of dueling, and opposing orders, the first to the courthouse may win because states often must give effect to orders from other courts."
The article I recall probably was about someone in california who was bound by a non-compete, but it wasn't the california courts that did it?
Anyway, my lack of expertise is really showing here, so I should probably stop. All I really wanted to say is yeah, I had that wrong.
That she chose to stay in the same industry was her fault
I consider my mind and my skill set as a tool of my trade. If I can't use it freely, I'm a serf. Presumably she wouldn't be allowed to /start/ a company, either.
A cow-orker of mine came to (large software company) from (another large software company), and had expertise in a certain sensitive area. We only found out about this when we asked him the reason he would go silent in meetings on certain subjects. He was under a funky trade-secret non-compete that had been worked out by lawyers, and was gagged for (I believe) five years from having technical input on stuff he was an expert in at the other company.
Presumably she wouldn't be allowed to /start/ a company, either.
No, she couldn't start a competing company.
I signed a noncompete, and am now starting a company. The only thing the noncompete prevents me from doing is a certain kind of high frequency trading.
Outside CA, large tech companies tend to interpret a "competing company" to mean "another tech company", or at least they try to advance that interpretation (courts don't always accept it). For example, IBM's position is that a non-compete prohibits you from working in any field of endeavor that IBM works in, not only the specific one you previously worked in at IBM--- and IBM works in quite a lot of technology areas.
Related: A decade or so ago, I worked for a small company that was acquired by Lucent, and part of their legal paperwork involved assigning any IP we created that was relevant to Lucent’s current or future businesses. A co-worker of mine observed that according to this document, if Lucent got into the Web content business, it would own his personal Web site.
Hmm, that's an obvious-in-retrospect approach I hadn't thought of. Just try to submit an addendum that defines the relevant field as something that isn't absurd-sounding, but is quite specific to what you're being hired for, and therefore clearly excludes wide swathes of things that aren't that.
What if she was working at Microsoft, for example? They have their hand in a number of industries. She couldn't become a game programmer even if all she worked on at Microsoft was the .Net framework because game publishers are in competition with Microsoft's 1st party Xbox titles, and she may have overheard a trade secret in the hall way one time.
But non-competes are one of the few things I don't disagree with. It's only a year, and it's only that 1 industry. And it's designed to prevent people from giving away business secrets to the new company. The kind of person who would accidentally give away business secrets is the very same kind that doesn't pay attention to what they're signing.
I have both signed non-competes, and refused to sign them, when the situations were acceptable and unacceptable respectively. If, in her situation, she didn't think she would be privy to business secrets, she should not have signed a non-compete.
And finally, it's not like she can't get a job elsewhere. That she chose to stay in the same industry was her fault. If she wasn't privy to any business secrets, she doesn't have any more experience in that industry than any other.