So what basis would a prospective employer have to request a copy, and how would said third party verify its authenticity?
Yes, they can presumably lie to you. But if you then so much as get a letter from a lawyer at that point, you fire them at a minimum.
Of course, noncompetes being unenforceable make for a good argument that one is not, in fact, bound by that covenant.
In practice, I’ve always just answered “no” to the question on this basis. If any former employer behaves in such a way as to get me fired from my present job, I’m rather optimistic about my prospects for legal remedy.
(of course, I live in California.)
It's maybe a little different if you're a chef and you've spent a lifetime mastering a particular recipe which is very hard to get right. You teach it to someone, and he goes out and opens his own restaurant selling that same dish. You can see the intuitive appeal of a noncompete, even if it's usually ineffective, and actually harmful to a high-tech ecosystem.
The situation regarding the difficult recipe could be handled under the Uniform Trade Secret Act, as adopted in various states, or under common law related to tortious misappropriation of classified information.
This might be a place where restrictive covenants not to compete aren’t really relevant, and if they disappeared, employees might still have all the tools they need to protect their interests.
Now, we're both in Ohio, where it likely would have been enforceable, but the point I'm making is that a court case wasn't necessary - the mere threat was sufficient.
Got hauled into a meeting with HR and general counsel where they both said basically “we got the same letter; we don’t think we compete nor would a court find we do; we’re sending them the following letter; don’t worry about it and get back to work.”
https://www.jdsupra.com/legalnews/california-court-of-appeal...
> Despite California’s general hostility towards post-termination restrictive covenants, the California Court of Appeal, in a recently published opinion, Blue Mountain Enters., LLC v. Owen, 74 Cal.App.5th 537 (1st Dist. Jan. 10, 2022), affirmed that a post-termination customer non-solicitation agreement was enforceable under California Business & Professions Code § 16601.
> Under most circumstances, contractual provisions that prevent a person from engaging in a profession, trade, or business, including customer non-solicitation agreements, are void in California. However, section 16601 of the California Business and Professions Code carves out a statutory exception to the rule for individuals selling all of their interest, including goodwill, in a business.
> ...
> After Owen’s employment was terminated for cause, Owen established a competing construction services company and sent a letter to Blue Mountain customers stating, among other things, that he was launching his new business with “greater perspective, more resources and a much stronger team.” Blue Mountain obtained preliminary and permanent injunctive relief prohibiting Owen from soliciting its customers and prevailed on its motion for summary judgment adjudication of its breach of contract claim.
https://news.bloomberglaw.com/daily-labor-report/amazon-uses...
https://www.geekwire.com/2019/amazon-sues-former-aws-exec-jo...
Disclosure: I work at Google.
"We all know non-competes are unenforceable and illegal." <- Absolutely useless if you can end up in court. Using unenforceable rights as a deterrant is common and potential future employers get spooked by it even if it is illegal. "Don't hire Jill, Mary is almost as good and has no non-compete. Don't want to go to court even if its unenforceable."
There are no consequences for forcing someone to have the stress, expense, time and to secure the financing so that if everything works as it should (which it often doesn't in all the various legal systems) you get only some of that back. If it doesn't work as it should you're toast. Not a nice thing to be hit with when the law is clearly designed that you should not be hit with anything at all.
For an individual or a startup it matters. For a large revenue incumbant they have people employed to abuse the system like that and the business expense of doing it is trivial, more than worth it. The law may exist so that the strongest do not always get their way - but this is an ideal with many exceptions including this one.
Ban away, but with no consequences for abuse and all measurements for the abused being the magnitude of the downside alone, no upside possible you don't get the result you're looking for.
Summary dismissal with costs, compensation and the potential to be branded a vexatious litigant so it is more difficult to bring any court action against anyone would be a real consequence for abusing the rules. Is the best one? Is it fair? Dunno. What we have now in most countries sure isn't.