If nothing else, it is very important that you keep the right to move up and out to a new job. That's the point you should focus on. In a realistic full-time first job, you're not going to work for a competitor at the same time, so it is fine to tell them you won't if that helps the two sides reach agreement.
Good point about not taking "this is the standard agreement" for an answer. That's not good enough. Say you understand that it's a boilerplate legal document, and you'd be more than happy to give them a couple days to double-check your proposed change with their boss, counsel, or whoever they need to. Again, be firm while giving them an avenue to save face, and wait for them to call back with a sudden change of heart.
I'll sign whatever illegal documents you want me to sign, knowning that they don't matter.
You might respond by saying something like "what if they go after you anyway, even though it is unenforceable.".
But the problem is that they could just do that anyway, illegal contract or not.
The difference is that with an illegal contract, your future employer might actually believe it's more headache than it's worth to fight. I would err on the side of casually striking it out of the employment contract, simply saying "this part of the standard document doesn't apply in our state" etc.
On the other hand, a court can't really order you to work for the company, so even if by some miracle they were successful, it'd come down to a matter of damages, and those would be difficult to prove even if you went to work for a direct competitor.
By the way, the Silicon Valley HBO show can be remarkably accurate on things. It's rare that a TV show gets things like this right, where people in the business don't.
I just happen to know lots of attorneys in the space. I am not an attorney or giving legal advice. Talk to your attorney for that.
At least one of the reasons for a non-compete clause is to make sure you're not doing stuff on the clock for your employer, and then getting double-paid by a competitor for essentially the same end result but without the competitor having to pay for the whole process of getting that result. Like, if they're paying you to spend 40 hours a week learning about the key problems in their industry and designing and implementing solutions, and then a competitor hires you for 10 hours a week to re-implement those solutions (not paying for the learning/designing phases). So the competitor is getting the benefit of work you're doing that in some sense should belong to your main employer.
There might be something better than a non-compete clause for that sort of scenario, I just don't know what it is.
So no, a noncompete - even one that only applies to the time you are employed by the company - isn't typically necessary.
Confidentiality doesn't work that well because proving that a former employee disclosed proprietary information is very difficult.
However, the ex-employee is generally paid at full salary for the time that they're unemployed, which seems like a very fair arrangement all around.
My friend did commercial banking. He had a one year non-compete, but it was geographically scoped, and he also had multi-year contracts that protected him from layoff. They needed to release him for specific causes, buy out the contract, release his contractual obligations, or some combo.
Usually it depends on the exact new position, whether it's at a direct competitor, how senior the person was, etc.
Why is the politico-economic system called "capitalism" and not "laborism"?
You have to take pains to avoid contamination when reverse engineering a product, for example, and that doesn't even involve the original staff.
Seems that your argument could also be used to justify lifetime noncompetes. If I work for a company, gain experience, then go work for another company, they're getting the benefit of all of that experience without having to pay for the years it took to obtain it.
The value of this, of course, depends very much on the specific industry and project. It doesn't really matter if your guy who builds generic websites for your clients also builds generic websites for a competitor's clients. That doesn't materially hurt the first employer. But it can matter a lot if your guy who you are paying to develop cutting-edge algorithms is deploying those algorithms to the competitor you're trying to beat. Instead of gaining an edge worth $X per year, your company instead gains only part of that advantage because at least one competitor is cutting into it.
Suboptimal if you're working for a direct competitor. Standard conflict of interest stuff. Would you accept Donald Trump working for Russia on the night shift?
Remember, non-compete is not the same as IP clause - which says anything you create on the job (and potentially off the job) is owned by the company.
This is often a matter of serious debate. For example, in New York legislators are considered part time, so they are permitted to operate businesses or be employed while in office. This creates an appearance (at a minimum) of conflict of interest in many scenarios. Full time employees of government generally need permission by the appointing authority to do meaningful outside business.
This applies to any government employee. A janitor on government payroll generally needs permission to work for a company that cleans offices at night.
This sounds very interesting and sort of funny. Not really sure how it works on other presidential houses, but still sounds amusing since it will probably require rules and guidelines on what exactly to deduct from the president's paycheck, no? What if the president invites someone over, in a sort-of-unofficial way but not really, do you get deducted as well? or maybe not because it was "for the job" sort of?
Definitely interested to know more.
I read about this in a book called The Residence: Inside the Private World of the White House, which was decently interesting.
Like I said, it does sound reasonable but apparently it does add up. From the link:
"[Laura] Bush wrote that a bill came monthly, itemizing everything she and her family owed, including food, dry cleaning and hourly wages for waiters and cleanup crews at private parties."
"There were some costs that I was not prepared for," Bush wrote. "I was amazed by the sheer number of designer clothes that I was expected to buy, like the women before me, to meet the expectations for a first lady."
I wonder what would happen if you said "Ah, so you're stipulating that it's a contract of adhesion. I'd like that in writing, please."
Contracts of adhesion can be harder to enforce [0].
(IANAL, and I'm not necessarily recommending doing this, but I am curious what kind of response one would be likely to get.)
[0] https://en.wikipedia.org/wiki/Standard_form_contract#Contrac...
Not joking btw. It's rather amazing that employers who expect rational, logical decision making on the job want applicants to suspend their reasoning and good judgment when it comes to negotiating compensation and employment terms.
Which is when you move on to the next employer if at all possible.
A court will be much more favorable to the applicant, then, because presenting them with a contract they have little power over is something courts generally don't like, as it is unjust.
Asking the employer to write "this is a contract of adhesion" basically means "oh, you're screwing me over? Can you please write that this is a screwing-over contract on it?".
Courts uphold shrink wrap and click-to-agree contracts all the time.
(ETA:) This might not help very much, because in places where noncompetes are standard, a court would be sticking its neck out a little to rule that one is unreasonable. But maybe it would help a little, if one couldn't get the provision struck from the contract altogether, and had no reasonable alternative to accepting the job. (Again: IANAL, and I'm just speculating -- no one should take this as legal advice!)
You're right that it's fair for employers not to hire me if this is my demand. I never meant to imply otherwise. Employers can require all sorts of terrible things. Our recourse is mostly to either negotiate or put up with it.
The difference is that you didn't spend lots of money researching a better type of floor-laying and then have the flooring company come in to lay the hardwood according to your specs. If you had, you might want to protect that secret.
I have little or no sympathy for businesses which insist on restricting freedom outside of those hours for which it pays me wage.
The problem is conflict of interest, I think working for direct competitor is very unethical (of course direct competitor is sometimes vague term, but that's another discussion).
The software industry is big enough that you can definitely find secondary employment at a company that isn't direct competitor. That you want to apparently game multiple parties for your own gain seems like a pretty terrible thing from the employer side of the fence.
Once the company I work for had an employee from a direct competitor apply for a job with us immediately after quitting. They were pretty forthcoming with offering us intel on the competitor, presumably within their contract. We still turned them down because if someone has that little respect for a working relationship with their previous employer you can be sure that they will do the same to you.
People here often like to paint the picture of the people versus evil corporations. In reality, a job is something where you should have mutual respect between employees and employers. To me and many others, this is part of being a professional.
This is evident; the employer pays for the upkeep and maintenance of a machine, and in the same way he pays for the upkeep and maintenance of the worker in the form of a wage. The worker is a self-fixing machine which sells a commodity which is able to not only transfer but create value.
"The only difference as compared with the old, outspoken slavery is this, that the worker of today seems to be free because he is not sold once for all, but piecemeal by the day, the week, the year, and because no one owner sells him to another, but he is forced to sell himself in this way instead, being the slave of no particular person, but of the whole property-holding class." (Engels)
"The slave frees himself when, of all the relations of private property, he abolishes only the relation of slavery and thereby becomes a proletarian; the proletarian can free himself only by abolishing private property in general."
The idea that you can "quit at any time" is a farce; you must then find employment under someone else in order to survive, or manage to amass sufficient capital, something which is not an option for most people, especially with family. An extreme example of this logic utterly failing is in those developing nations with sweatshops.
> An extreme example of this logic utterly failing is in those developing nations with sweatshops
Poverty means making hard choices. If your choices are :
1. Starve to death
2. Work in a sweatshop
Most people would pick 'Work in a sweatshop'. Nobody who has the choice to work in a sweatshop or be a doctor is working in a sweatshop
Then it's not a choice. Therefore there can be no consent, you are not made to work by force but by threat of starvation or homelessness, it is an oppressive situation even if these people don't have literal chains at their feet.
It is not a consensual relationship, and at the very least it is exploitative, just as a prostitute who must sell herself on the street to make ends meet is being exploited - not by any particular person, but by the system perpetuated by the individuals who force her to sell herself in this way. When the only alternative is starving, I'm afraid to say that it's not consent when someone agrees not to starve.
In slavery the owner is creating the conditions of oppression. In free market the employer is paying the wages which could potentially lift the employee out of poverty
Equating all hardships to slavery is pure folly
I agree, but they don't have to work for someone else who extracts surplus. They can organise themselves and work themselves, voluntarily. They then own the products they make and decide how and if to distribute them.
>In free market the employer is paying the wages which could potentially lift the employee out of poverty
In slavery, the slave owner is providing the housing and food which could potentially lift the slave out of being in a state without food or shelter.
The owner and employer both perpetuate the system of oppression, this much is a fact. If there were no capitalists, there would be capitalism. If there were no slave owners, there would be no slavery. If there were no lords, there would be no feudalism.
You cannot escape the fact that the capitalist is taking advantage of the lack of choice and lack of capital by virtue of accident of birth and the property system which the capitalist defends and supports.
This surplus is profit, which is the motivation for setting up businesses. Take that away and there is no good reason for taking the risk
> They can organise themselves and work themselves, voluntarily.
This is already allowed in a capitalist society
> They then own the products they make and decide how and if to distribute them
Disagree. The labourers own their labour and the owners own the product
> In slavery, the slave owner is providing the housing and food which could potentially lift the slave out of being in a state without food or shelter
Again, in slavery you do not own your labour. So the surplus of your wages ( or time ) cannot be invested, or used to create capital
> The owner and employer both perpetuate the system of oppression, this much is a fact. If there were no capitalists, there would be capitalism. If there were no slave owners, there would be no slavery. If there were no lords, there would be no feudalism.
What does this even mean ?
> You cannot escape the fact that the capitalist is taking advantage of the lack of choice and lack of capital by virtue of accident of birth and the property system which the capitalist defends and supports
Without property ( which ultimately boils down to the right to enjoy the fruits of one's labour ) there is no good reason to perform the unenviable job we call "work"
To me, it looks like the system you are proposing would be very much like slavery
I'm not arguing for businesses, I'm arguing for the destruction of capitalism. I hope that businesses currently around fail.
>This is already allowed in a capitalist society
Any organisation which attempts to do so will fail very quickly, due to the fact that (i) workers must be kept employed, not disposed of when machinery that does a better job becomes available (ii) workers would have to be paid much higher than in those firms that do not operate as co-operatives. These two facts mean that such an organisation cannot compete. A good analysis is here: https://www.youtube.com/watch?v=yAxajtiRatg
It is not a viable option within capitalism to provide for the labour force in the interests of the labour force. Also, most people cannot be employed in a co-operative, so the problem still exists. As long as the problem exists for even one person, I view that as reason to fix the system.
>The labourers own their labour and the owners own the product
Wrong. Labourers sell their labour-time to the capitalist, and that commodity has the use value of creating labour, which is transferred to the products. The labour is crystallised inside the products which are made, and those are appropriated by the capitalist at the end of production. If the worker owned his labour, the products at the end of production which the capitalist re-possesses in order to sell would have no more value than when they entered the factory as raw materials and machinery. Therefore the capitalist could not make any profit.
>What does this even mean ?
Capitalism requires land and property owners; if those land and property owners cease to exist, capitalism must also cease to exist. As such, the system which creates the force for people to choose between starving and wage labour is perpetuated by the whole class of property owners, i.e the capitalists.
>Without property ( which ultimately boils down to the right to enjoy the fruits of one's labour ) there is no good reason to perform the unenviable job we call "work"
Why is work unenviable? And within a Socialist society, the workers own what they produce by the end of the production process. They can then decide democratically how to distribute the products that they make among themselves, or choose to not distribute them at all. If you are trying to say that humans just sit around all day and do nothing, this is incorrect; in any system, one must work to survive. In a Socialist system, you are rewarded according to your labour, because you own what you make in a joint production process.
There are various motivations for wanting to work, too; the desire for credit, wanting to provide for your family and children, wanting to improve the conditions of the society you live in, the desire to help other people in your community, out of necessity for something you want to see finished, for mastery, as a hobby, etc.
It will be up to an individual to decide why he wishes to work, but in no circumstance will he forced to sell his labour-power for someone to make money from his labour without doing an hour of labour themselves.
If it is true that communist societies are superior they should not be bombable by capitalist societies. But if you are claiming that capitalist societies are inherently more unjust to favor people with capital, communist socieities as inherently more unjust in a way that favor people with political power
> Labourers sell their labour-time to the capitalist, and that commodity has the use value of creating labour, which is transferred to the products. The labour is crystallised inside the products which are made, and those are appropriated by the capitalist at the end of production. If the worker owned his labour, the products at the end of production which the capitalist re-possesses in order to sell would have no more value than when they entered the factory as raw materials and machinery. Therefore the capitalist could not make any profit.
This is pure nonsense on many levels.
What about the value derived from the risk taken by the enterpreneur ? What about the value derived from the work done by the enterpreneur ?
Also value is subjective. A hungry person will pay more for a piece of bread than a satiatated human being. This again is a source of profit ( and no, its not oppressive if there is competition to establish a fair price )
> Capitalism requires land and property owners; if those land and property owners cease to exist, capitalism must also cease to exist. As such, the system which creates the force for people to choose between starving and wage labour is perpetuated by the whole class of property owners, i.e the capitalists.
The difference, again, is that the wages paid can be used to climb out of this position. This option is not available in slavery. Employee-Employer relationship is mutually beneficial, not oppressive
> Why is work unenviable?
Do you work for Google ?
> There are various motivations for wanting to work, too; the desire for credit,
> wanting to improve the conditions of the society you live in
> the desire to help other people in your community, out of necessity for something you want to see finished, for mastery, as a hobby, etc
This does not ensure that the important and necessary work will get done. Also it does not ensure that the work which contributes maximum to the society is preferred over other useless work. I prefer to live in a world where important work gets priority even if it means I have to perform unenviable tasks for limited periods of time
The fact the entrepreneur was able to take a risk at all is remarkable by itself: without starting capital (often inherited), you simply cannot take any risk to begin with.
Want to reward risk-taking? Think how this very thinking perpetuates (perhaps even increases) inequality.
> What about the value derived from the work done by the enterpreneur ?
That work has value and should be factored in the final value of the products, then rewarded.
Make no mistake, slavery also requires consent: the slave can always kill himself at the very least.
Coercion (or lack thereof) is immaterial. And even if it's not, we could argue that there is a coercion of sorts: how come the employers don't offer better choices? Are they even talking to the government to help them offer better choices? Or do they just want to maximise profits, using whatever means necessary? Sure, their responsibility is much more diffuse and less clear cut than that of a slaver who would personally kill unwilling slaves. But from the point of view of the slave/employee, the result is the same: servitude or death.
Note that the sweatshop situation is dire enough that some people do chose death over the sweat shop. Enough of them that some shops have nets around them to prevent their employees from jumping off.
Rape is a thing, so I don't think this is a very good moral standard. Informed, active assent is the usual standard.
Many people can't. I mean, they can, but they can't afford it, unless they're willing to risk homelessness.
Funny how that sentiment disappears completely when the topic of employers wanting your total productive output comes up.
Now, you can argue that it's not your employer's business what you do off the clock, but it at least provides a way to protect yourself from falling foul of the agreement and having the company later claim ownership of your work. The key though is to ensure that you don't do any personal work on a company laptop - I believe once you do that all bets are off.
As an employee, every company I've ever worked for has given me one. Few have been negotiable, but pretty much all have openly stated/agreed they weren't enforceable in CA when I raised concerns.
True. But said company may not want your experience, let alone anything you learn about their business, to benefit competitors. Indeed, they may consider your training with them to be an investment, which gives them rights about what you do with it.
The fact that we work in a field where your hobby might quite often be productive work to the extent that it could compete with your day job is an extreme privilege and is to be treated as such.
That said, these things are often malleable, and that's a good thing to be aware of, but grandstanding on "4.2x salary" just makes you look entitled.
Wow. So your point is that, because you like doing non-work on your own time, everybody should be prohibited from doing work?
> The fact that we work in a field where your hobby might quite often be productive work to the extent that it could compete with your day job is an extreme privilege and is to be treated as such.
Holy shit, seriously? I seriously have to ask my employer permission to have a hobby because the hobby might be lucrative? I have a hard time believing you actually hold these opinions.
My employer isn't the one who made my hobby "a privilege". My hobby might be a privilege, but I'm sure as hell not going to ask my employer whether they'll allow me to practice it.
It's not a privilege, by the way, because it's a hobby. At most, the "privilege" is the fact that people will pay for it, but it's the same for any person who actually enjoys the field they work in.
A company is paying me to work for them, they're not paying to own me. When I'm off the clock, my time is my own, up to and including doing paid work for anyone else I want.
I'd make an exception if they increased my pay accordingly. But considering that they're asking for 4.2x more of my time than usual, they'd better be paying me at least 4.2x a normal full-time salary.
I do have a little experience with making changes to contracts that the other party doesn't want to change, and to that end I'd like to add two more things. First, it's likely they'll use the phrase "standard contract" and say that it just can't be changed. Second, if you've gotten that far, it's quite likely they'll change your minds if you stick to your guns. It's tempting to cave in when they say "sorry, we can't accept changes," but don't.