But in this case, I think they are identifying an implication of "not making generalities" which I find to be perfectly appropriate. It reminds me of the robolending scandal, and how companies involved tried to deflect systematic criticism by suggesting each instance of robolending needed to be reviewed on a case by case basis without drawing why systematic conclusions.
It's meant as a criticism of how "don't make generalizations" can be used to deflect important and appropriate criticism, and I don't think it's just a case of someone changing the subject randomly.
You can object to style without having to signal to the community that misinterpreting comments is an accepted practice.
Endorsing the misread as the cost of doing business in order to reject a comment over stylistic objections signals that misreading is to be embraced as a community value.
I found their tone quite sneering and flippant, and so I parodied it (pretty mildly, I might add, the implications are right there in the comment I replied to).
Moreover, it doesn't prevent unreasonable entities from having their retained lawyers draft scary letters. Most people just sign the boilerplate, hope for the best, and try not to poke sticks into wasp nests if they can avoid it.
After all, we make promises all the time that are unenforceable, but we keep them.
In fact, that scenario is so dishonorable that in some states you can ask the court for triple damages if the employer tries to enforce the noncompete
For anyone in the US who needs regular healthcare beyond what's provided by Medicaid, the labor market is a war for (literal) survival. If the ownership class didn't want to return to an extremely adversarial relationship with labor, then they shouldn't have gutted the social safety net.
If one party holds all the cards in a contract negotiation it's never truly being negotiated in good faith in the first place. Furthermore, one could argue that without having an expert on contract law right then and there available to answer any questions about any given contract means it falls under a "lack of capacity" for basically anyone who isn't a lawyer.
Employee agreements often fail in courts because of:
- Duress
- Lack of capacity (e.g. due to overly complicated legalese *specifically written to be hard to understand*)
- Undue influence (e.g. company says they'll hire someone else if you ask to get the contract reviewed by a lawyer before signing)
- Misrepresentation (e.g. job was described as "X" but turns out it's "Y")
- Non-disclosure (e.g. candidate was not told job would require purchasing products or services sold by the company itself or a partner)
- Unconscionability (e.g. some term or terms in the contract are so unfair that it cannot be allowed to stand... Like a non-compete that says you can't work within 50 miles of your former place of employment if you leave)
Nobody is making you sign it.
They're likely banking on that sense of honor to make you hold yourself to obligations they can't legally hold you to.
Their honor or lack of it is irrelevant to you having honor.
> They're likely banking on that sense of honor to make you hold yourself to obligations they can't legally hold you to.
The honorable choices are:
1. agree to the clause, and stick to your agreement
2. negotiate to remove the clause
3. walk away from the deal
The dishonorable choice is:
4. cross your fingers behind your back when signing it, and later saying "neener neener whatcha going to do about it?" when you renege
You get to choose. It's entirely up to you.
My employment lawyer friend is fairly certain that if a FAANG tried to enforce a noncompete without a garden leave clause, they could be sued for triple damages, where the damages would certainly include the minimum required garden leave, and that if the enforcement attempt resulted in a job opportunity being aborted you could probably also include the full vesting schedule of your next employment contract in the damages (which, again, gets tripled).
[1] M.G.L Chapter 149 Section 24L:
(b) To be valid and enforceable, a noncompetition agreement must meet the minimum requirements of paragraphs (i) through (viii)...
(vii) The noncompetition agreement shall be supported by a garden leave clause or other mutually-agreed upon consideration between the employer and the employee, provided that such consideration is specified in the noncompetition agreement. To constitute a garden leave clause within the meaning of this section, the agreement must (i) provide for the payment, consistent with the requirements for the payment of wages under section 148 of chapter 149 of the general laws, on a pro-rata basis during the entirety of the restricted period, of at least 50 percent of the employee's highest annualized base salary paid by the employer within the 2 years preceding the employee's termination; and (ii) except in the event of a breach by the employee, not permit an employer to unilaterally discontinue or otherwise fail or refuse to make the payments; provided, however, if the restricted period has been increased beyond 12 months as a result of the employee's breach of a fiduciary duty to the employer or the employee has unlawfully taken, physically or electronically, property belonging to the employer, the employer shall not be required to provide payments to the employee during the extension of the restricted period.
The question is what is the rate of voluntary compliance in what would otherwise be an illegal contract.
I think it’s boilerplate in big company contracts there, but extremely rarely enforced, because IIRC the amount you have to pay is the comp for the job you’re blocking.
When I had a contract like that, I occasionally fantasized about getting a FAANG job and being paid in full to not take it, but in reality that would never happen unless you got caught in a spat between rival executives.
As an engineer, I have seen a lot of contracts with bogus non-compete clauses and never seen one that would hold in court. So the employees are technically protected but still subject to psychological warfare (threats when you plan to ignore an illegal clause).
Yes! This is a particularly true for most software engineers. I have a friend who is a doctor whose contract says that if quits, he can't practice medicine within a 30-mile radius for 12 months. His only option would be to move to a different area, take a job with a horrible commute for a year or to wait it out. On the other hand, as a software engineer, I've never been in a situation where my thought is to move to a direct competitor. My skillset is broadly applicable to many industries, and it wouldn't be strange to do one gig for Home Depot, the next one at Google, followed by a role at Tesla.
The entire concept of going to work for someone else is that it's supposed to save you a lot of trouble having to sell your services on your own/run your own business. If it has become so much more profitable for doctors to leave and start their own practice then they should be doing that because you're not paying them enough! You're not "making good" on your end of the bargain that we offer in civilized society.
That line of reasoning goes both way. If you sign something, then it was worth it for you.
It depends. Many instruments, such as PET in nuclear medicine, cost a lot. One have to work for hospitals/networks to help his/her patients with that instruments, no matter how good he/her is.
Also, if the doctor's patients all like him enough to switch to his private practice when he leaves then clearly they weren't paying the doctor enough. He was worth that many patients!
Can't stress this enough. Show up, attend to patients as scheduled then go home and enjoy life. All the boring details are taken care of. It's definitely more profitable to start one's own practice but the comfort of working at such places should not be underestimated.
Going from Google to Tesla? Sorry, they're a competitor in driving cars. Spotify? They compete in streaming music. Microsoft? They compete in search. Apple? They compete in cellphones. Telegram Inc? Google does instant messaging. Garmin? Google does maps. NCR? Every heard of Google Wallet?
Another consideration is whether the contract can be enforced and your legal recourse if the counter-party attempts to enforce an invalid contract clause. This is particularly true for noncompetes.
A better piece of advice than "never sign" is to simply find an employment lawyer and discuss the ramifications of the contract prior to signing.
More importantly, I would also happily fight them in court if it came to that (and retire on the triple damages).
I'm thinking of some of the other clauses:
1. "one-sided termination clause": Every contract in an at-will jurisdictions without a guaranteed exit bonus contains, implicitly or otherwise, a "one-sided termination clause". I have never seen a contract for "normal working stiffs" that contains an exit bonus, and I've only ever worked in at-will jurisdictions.
2. IP assignment
3. Confidentiality agreements with broad language
The whole thing is laughably unenforceable as well. They're trying to end run around federal law protecting members of the uniformed services. You can write any contract you want & have anyone you want sign it about. Doesn't mean anything, at all.
Also I'm pretty sure if I got called up to go to war, there is going to be someone in the DoD who can give me a little legal help in explaining to the landlord how hard they need to pound sand.
So yea, in a case like that that part of the contract would be struck, but it isn’t a get out of jail free card for the entire contract.
The same company also just dropped off an "updated" contract a few months later and told me that I had to review it and sign it or move out by the end of the month. I obviously just ignored this.
DIY contracts are the best to sign because they are such a mess.
Reasonable companies don’t want to get a reputation for litigating employment clauses like this. Sure, there are outliers, but nobody wants to be on the front page of HN for suing an engineer over a side hustle. Especially not in this labor market!
Side note: it was delightful to me that the engineers carefully read the agreement and one of them consulted their own lawyer. Most people don’t do that.
No, and my posts are not legal advice.
> Or do you have a lawyer review every contract you sign?
Yes, and they provide me with legal advice specific to my situation.
> Just curious how you are so confident a particular contract, or clause within, is unenforceable. Not saying you're wrong, but how do you know?
MA statute is very clearly written and its courts don't have a reputation for fucking around with legislative intent.
And I'm free to work on other stuff or have a side business. People in the company disagree on how much of that needs to be disclosed, though.
I'd argue that the best thing we can do is to not just make generalizations about what is OK to sign or not. Confidentiality agreements and non-competes are fine if they are narrowly focused, fair, and your compensation is sufficient to make it worth the restrictions. Because that is what a contract really is - a balancing act between obligations and limitations put on yourself contrasted with benefits (money) given to you in exchange.
So an absurd non-compete is fine if they pay me a lot of money for it. An confidentiality clause is fine if they pay me a lot of money for it.
This becomes critical when looking at all the recent layoffs. Most severance packages are exactly this type of contract - confidentiality and other restrictions in exchange for your severance pay.
Should you sign? Maybe. Maybe the severance pay is worth it. Read the contract, understand it, and make a choice.