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Re:How a Legal Journalist Got Fired for a Non-Compete by pc86 on Monday February 08, 2016 @12:46PM (#11059563)
> some way of educating potential employees that they should read contracts in detail

I don't mean to sound overly dismissive, but isn't this just part of being an adult? Meaning, don't sign legally binding contracts that you haven't read. Don't lock yourself into a potential course of action, or waive rights to certain things (e.g. arbitration agreements), without understanding the ramifications should something go pear-shaped in the future.

Some of these are sign as is or don't sign, unfortunately. My wife and I were about to buy a car maybe three months ago, and throughout the process we're signing paper documents for everything. Most of it printed off a dot matrix printer, if you can believe that.

Then we get to the arbitration agreement. Handed an iPad with the agreement on it, no ability to change anything, and a signature pad to sign. I put up a fuss and said that we weren't going to sign the agreement, but eventually we had to walk away from the deal because they would not proceed without it and would not provide a paper copy we could red line at the desk.

Re:How a Legal Journalist Got Fired for a Non-Compete by Lawtonfogle on Monday February 08, 2016 @02:12PM (#11060219)
>Meaning, don't sign legally binding contracts that you haven't read.

If we required this to be an adult that the world would be full of children. Granted, I personally want this. I would like to make 'I didn't read/understand the contract' valid reason to break a contract unless the other party could prove with clear and convincing evidence you read and understood the contract... but I realize this would bring our society to a halt and would require a significant rework to fix. We live in a society that abuses consent and to swap to one that doesn't will not be an easy task.

Re:How a Legal Journalist Got Fired for a Non-Compete by jdmichal on Monday February 08, 2016 @05:30PM (#11061361)
... Your signature is exactly supposed to be the "clear and convincing evidence" that you read and agreed to the contract. Now understood it, that's a different matter entirely and is generally governed by contractual capacity, which adults by default have. I'm not even sure how you would prove contractual capacity, short of proving that they can read and understand the words on the page... Which is basically just the opposite of proving that someone is not capable due to mental illness or impairment. Considering that it's much more likely that someone is capable than not, it seems like assuming capability and proving the lack thereof is a reasonable stance.
Re:How a Legal Journalist Got Fired for a Non-Compete by abraae on Monday February 08, 2016 @07:12PM (#11061995)
If "contractual capacity" means that you have a legally robust understanding of the meaning of all of the clauses in a contract, then I'd posit that maybe 1% of the population have that, even for common consumer contracts such as with Telcos.

I'd guess that only a small minority of the population have a sound idea of what arbitration or indemnification are for example.

Re:How a Legal Journalist Got Fired for a Non-Compete by jdmichal on Monday February 08, 2016 @07:37PM (#11062125)
"Contractual capacity" means you have the capacity to enter legally-binding contracts. It is generally understood that if you willingly enter into a contract that you agreed to the terms. Not willingly entering the contract is signing under duress and would result in a voided contract. Not understanding the terms is not a valid defense, unless you were not capable of understanding them, in which case you would be ruled contractually incapable and any contracts voided. If you were capable of understanding the terms and simply chose not to before signing, that is on you.
Re:How a Legal Journalist Got Fired for a Non-Compete by Lawtonfogle on Tuesday February 09, 2016 @08:38AM (#11065129)
>Your signature is exactly supposed to be the "clear and convincing evidence" that you read and agreed to the contract.

And if a signature can be substituted for informed consent, well I have this crayon signature from a child promising me a billion dollars if I let them play one of my video games. The signature clearly outlines that they understood and consented to the agreement.

Re:How a Legal Journalist Got Fired for a Non-Compete by jdmichal on Tuesday February 09, 2016 @10:31AM (#11065905)
Except minors don't have contractual capacity, for exactly the very reason that they can't understand what they are signing. Any contract signed by a minor can be either honored or voided by the minor at will.
Re:How a Legal Journalist Got Fired for a Non-Compete by Lawtonfogle on Tuesday February 09, 2016 @11:43AM (#11066563)
>Except minors don't have contractual capacity, for exactly the very reason that they can't understand what they are signing.

They can understand the simple contract far better than an adult can understand the average legal heavy contract. Any reasoning to not give contractual capacity to a minor (especially one who is able to read/write) applies just as well to the average individual.

Re:How a Legal Journalist Got Fired for a Non-Compete by jdmichal on Tuesday February 09, 2016 @01:44PM (#11067627)
No, a child does not understand that owing a billion dollars means several lifetimes of debt that they will never pay. If no reasonable adult would agree to the terms but a child would, that immediately indicates that the child is not functioning as an adult and is therefore not contractually capable. Because this can pretty much be generalized to all minors, it's simply laid out in law that they are not contractually capable.
Re:How a Legal Journalist Got Fired for a Non-Compete by Lawtonfogle on Tuesday February 09, 2016 @03:00PM (#11068302)
>No, a child does not understand that owing a billion dollars means several lifetimes of debt that they will never pay.

They do. They only agree because they realize it would never be enforced. Maybe a really young child wouldn't, but a preteen would know similar amounts as an 18 year old. That said, most 18 year olds don't really comprehend how much it will take to pay back their college loans and many, once they figure it out, say they wouldn't have agreed. There are also many who take out pay day loans not realizing how bad a deal it would be who would not have taken them had they understood the true costs.

>Because this can pretty much be generalized to all minors

There is nothing you can generalize between a 2 year old and a 16 year old that couldn't also be generalized to someone 18+.

Re:How a Legal Journalist Got Fired for a Non-Compete by jdmichal on Tuesday February 09, 2016 @04:43PM (#11069012)
So I'm not really sure what your standing point is anymore. You yourself admit [0] that children and adults don't have the same contractual capability. Your example relies on a ridiculous presumption which exactly proves why minors are not considered capable. And now you're on to people regretting financial decisions, to which my response is, who doesn't?

The information is there, if they do the math. Failure to crunch the numbers is, in my opinion and in the law's, not an excuse to void a contract. Changes like credit card statements showing the results of paying only the minimum payment only do the math for you, not relay novel information. They are only valuable in the sense that people can no longer not do the math and remain ignorant, because it is already done for them.

[0] https://news.ycombinator.com/item?id=11060258

Re:How a Legal Journalist Got Fired for a Non-Compete by pc86 on Monday February 08, 2016 @03:12PM (#11060572)
It's impossible to prove someone read something, and even if it wasn't it would be impossible to prove they understood it.
Re:How a Legal Journalist Got Fired for a Non-Compete by Lawtonfogle on Monday February 08, 2016 @04:39PM (#11061072)
Mathematically prove? Yes, that would be impossible. I'm talking legally prove.

>prove with clear and convincing evidence

Clear and convincing evidence is a set of evidence required to reach the point. It is in-between preponderance of the evidence and beyond a reasonable doubt.

Mathematically speaking, no matter how much evidence you have, you can never reach a full proof that someone did some action. You might get one hundred 9's, but you will never get one 100. But legally, you don't need to. Even the highest standard of evidence does not require a 100% certainty. But I'm not even saying we go with the highest, I'm saying go with clear and convincing.

(Clear and convincing is, from what I've seen, the standard needed to award punitive damages resulting from fraud in a civil case. Preponderance is needed for more exact damages. Beyond a reasonable doubt is needed for criminal prosecution for fraud.)

Re:How a Legal Journalist Got Fired for a Non-Compete by mikeash on Monday February 08, 2016 @01:00PM (#11059699)
It is part of being an adult, but many adults are deficient in adult-like things. And really, if nobody ever tells new adults stuff like this, how are they supposed to know?
Re:How a Legal Journalist Got Fired for a Non-Compete by TeMPOraL on Monday February 08, 2016 @01:07PM (#11059762)
Also, while a child has little chances dealing with an adult, it's also true that an adult layman has little chances against an adult professional.
Re:How a Legal Journalist Got Fired for a Non-Compete by Lawtonfogle on Monday February 08, 2016 @02:17PM (#11060258)
Which is why the very notion of consenting to contracts completely suspect when one side is a larger corporation and the other side is someone with an average IQ and education. You should no more honor their contract than you would a contract between the average child and the average adult.
Re:How a Legal Journalist Got Fired for a Non-Compete by jdmichal on Monday February 08, 2016 @05:37PM (#11061410)
So what's the solution then? Are corporations are supposed to hire an "average" person to write an employment contract for them, so that the playing field is level? Or is the employee supposed to hire a lawyer to inform them, which is something they can already do? Does the mom-and-pop down the street that hires teenagers with a contract from LegalZoom qualify? At what level of sophistication is this line drawn?

The only real position I see here is something like arethuza discussed [0] where the employer reimburses the employee for legal fees related to reviewing and negotiating the contract. Though questions of "when does this apply" are still unsolved.

[0] https://news.ycombinator.com/item?id=11059309

Re:How a Legal Journalist Got Fired for a Non-Compete by mikeash on Monday February 08, 2016 @06:57PM (#11061930)
Banning unreasonable clauses is a good step. It's not a complete solution, but those are rarely possible anyway.

Better education would be another good step. WTF Are Contracts 101 should be a required course at every high school, along with WTF Are Credit Cards, WTF is Voting, and How TF Do Taxes Work.

Re:How a Legal Journalist Got Fired for a Non-Compete by jdmichal on Monday February 08, 2016 @07:42PM (#11062155)
Agreed on all counts, though it's mostly unrelated to Lawtonfogle's exact suggestion that I was replying to. I've held for a long time that every high school needs to have a mandatory personal finance class, which would cover things like budgets, credit, and taxes. I could see a kind of "personal legality" class being useful also.
Re:How a Legal Journalist Got Fired for a Non-Compete by kafkaesq on Monday February 08, 2016 @02:23PM (#11060285)
I don't mean to sound overly dismissive, but isn't this just part of being an adult

You would think so -- but many companies apparently expect that none of their candidates will really read (let alone think about the consequences of) the employment terms they're expecting them to sign.

As if they'd basically prefer to hire children.

Re:How a Legal Journalist Got Fired for a Non-Compete by dalke on Monday February 08, 2016 @07:11PM (#11061991)
Take a look at how nearly everyone clicks "agree" without reading the oh-so-many clickwrap agreements.

If what you say is true, then you must believe there are very few adults in the world.

Re:How a Legal Journalist Got Fired for a Non-Compete by chrisbennet on Monday February 08, 2016 @08:41PM (#11062448)
But we don't sign them...
Re:How a Legal Journalist Got Fired for a Non-Compete by malz on Monday February 08, 2016 @06:40PM (#11061866)
> My wife and I were about to buy a car ... eventually we had to walk away from the deal

Just curious, were you able to buy a car elsewhere without signing an arbitration agreement?

Re:How a Legal Journalist Got Fired for a Non-Compete by mbrundle on Monday February 08, 2016 @02:35PM (#11060360)
> ...isn't this just part of being an adult?

It is, but in practice I don't think it's as straightforward as that, because:

1. There can be a presumption that the contract will be fairly written. Some of my recruiting employers have behaved as though they have your best interests at heart, which could lull you into a false sense of security. [A]

2. As you mention, it can seem that the decision is strictly yes/no. Corporate EULAs fall into this category - you either agree to abide to the terms of huge piles of legalese, or you don't use the software. I admit that I just agree to all of these. Even if I did read them and find a clause that I wanted to negotiate, I don't know how I'd even begin to broach the subject with an Apple, Microsoft, Adobe etc. And a similar situation exists in employment contracts, where someone who is desperate to accept a job offer (e.g. at a big uni or company), and they may not know that the terms are negotiable.

3. People just may not be aware that there are really long term consequences, such as the non-compete clause in the OP. I certainly didn't know about these sorts of issues before I worked in the Bay Area.

4. Some of the more restrictive legal clauses may be quite innocuously or confusingly written, and therefore require a lawyer with relevant experience to spot. So even if a layperson is being diligent, they may still fall afoul of something dodgy.

========

[A] Quick aside. One startup CEO gave me such a contract, and when I verbally raised some issues, he just laughed them off and said they were typical boiler-plate legal language, and said that none of this would ever affect me. I was on friendly terms with the CEO and was therefore ready to accept those assurances, but my wife wouldn't have any of it, and she urged me to make some modifications.

I just looked up the email thread where my wife and I discussed one particular startup employment contract. It featured a section on intellectual property rights, where if you didn't complete an additional "Exhibit A", you were at risk of giving the company free licensing rights to anything you'd worked on in the past.

Wife: "It should be okay to sign, but not without completing Exhibit A."

Me: "I think it'll be fine, they're nice people, I'll just go ahead and sign it."

Wife: "Wrong answer."

I spent hours working on the Exhibit A, and took it to the CEO the next day. When he read it, he saw red and stormed off out of the office to talk to his legal counsel. The legal counsel came back and said yeah, my wife was right, and agreed to do the changes.

When I joined the company, it turned out I was the only technical person who had filled out that Exhibit. Would this have affected any of them? Who knows, but there was certainly a quantifiable risk involved. I'm certainly glad that I had my back covered by it when the shit hit the fan. The others were smart people who just didn't understand the legal consequences of not filling in that Exhibit.

Re:How a Legal Journalist Got Fired for a Non-Compete by jeff_tyrrill on Monday February 08, 2016 @09:11PM (#11062564)
I had a very similar experience to you. In an employment contract, I asked for--and got--an amendment to an IP provision to remove wording suggesting that I was performing an IP transfer to any personal work prior to employment not listed in Exhibit A. The employer even told me that the wording I suggested might be better wording to use in their standard contract.
Re:How a Legal Journalist Got Fired for a Non-Compete by jimbokun on Tuesday February 09, 2016 @09:46AM (#11065567)
"I don't mean to sound overly dismissive, but isn't this just part of being an adult?"

Reading and understanding what you read doesn't make any difference.

In the U.S., employers have a lot of power. Workers have none. When every company has a non-compete (or whatever other egregious terms), eventually you have to sign somewhere so you can feed yourself.

Re:How a Legal Journalist Got Fired for a Non-Compete by arclyte on Monday February 08, 2016 @04:14PM (#11060930)
> but isn't this just part of being an adult?

If you believe that, I've got a bridge I'd like to sell you... Eh? Eh? See what I did there?