> 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.

Your new employer doesn't have to fight anything. Non-executive non-competes are specifically disallowed by the CA gov't. It's up to your previous employer to prove you were an executive (upper management/c-suite) and sue you, not vice versa.

But then you have to deal with a lawsuit, hire a lawyer, etc. Just because it's unenforceable doesn't mean that your shitty employer can't sue you. Why not just head it off at the beginning and have it right there in the signed contract?

You don't necessarily need to hire a lawyer, but I've always found this to be one of the pains of the American costs system.

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.

It'd be thrown out immediately anyway, due to having no legal basis (at least in the mainland European civil law systems)

California doesn't have a mainland European civil law system.

The plaintiff pays costs in these cases (filing fees, motion fees, etc) and, if it gets thrown out (most likely, as it would be considered frivolous)/you win, you owe nothing. It's really a stupid action for a company to try and take.

They're not "notoriously difficult to enforce", they're specifically unenforcable to non-executives. The CA legislature and judiciary have long since settled any questions regarding these and also have frameworks in place for companies trying to make you an "executive engineer" or "director of blah" to try and get around it.

Beyond that, not just the clause is unenforceable, it invalidates the whole contract.

Invalidating the whole contract is not good. You still want to get paid and get all the other benefits from the contract.

Isn't there usually a clause at the end stating that even if some parts are unenforceable, the rest of the contract still holds?

Yes, typically, there is a 'severability' clause that encodes that.

Wouldn't that clause be voided too?

The severability clause is what keeps illegal clauses from invalidating the whole contract.

Yes, and CA really doesn't want non-compete clauses, so they invalidate the severability clause as well.

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.

What if the law changes out from underneath you? Better not to have it in the contract at all.

Be careful. You might have trouble if you later move to another state and keep your job. Or if California changes its rules.

Same here in Taiwan. Court has ruled more than once that non-complete cannot be applied to any employee who is not top-level executive.

Wasn't this a plot point in Silicon Valley?

Yes it was. "Silicon Valley" is a series about a start up, for anyone that doesn't know.