'Send Noncompete Agreements Back To the Middle Ages' (bloomberg.com) 83
Stephen Mihm, Bloomberg contributor and associate professor of history at the University of Georgia, argues against the use of noncompete agreements (NCAs) because they limit the free flow of employees and discourage innovation. An anonymous Slashdot reader shares an excerpt from his report: The agreements, known as NCAs, forbid workers from taking valuable skills acquired from one employer to a competing firm. They first appeared in the Middle Ages, when master artisans required them of apprentices because they didn't want to face direct competition once their proteges set up shop on their own. Courts eventually sanctioned these restraints, provided they didn't harm the public interest, establish a monopoly or unduly restrain an employee's right to work. But this trend toward wider use of the contracts, which gathered steam from the late 18th century onward, conveniently omitted that they originally applied to skilled laborers operating in a pre-capitalist society. Yet employers increasingly used noncompete clauses to limit the mobility of unskilled wage laborers along with skilled workers.
Have NCAs helped or hindered economic growth? The most famous study looked at California, one of only a handful of states that do not permit NCAs. The de facto prohibition of the agreements affected skilled and non-skilled workers alike, and employees high and low could jump from job to job without any fear of legal reprisal. The mobility seems to have disseminated innovation very swiftly from company to company, creating the kind of dynamism and technological spillover that helps foster long-term success. The prohibition of NCAs clearly benefited Silicon Valley. Further proof was provided by the comparison to another claimant to high-tech supremacy: Route 128 in Massachusetts. The conclusion was that California's ban -- and the embrace of the agreements in Massachusetts -- helped tilt the balance of power to California.
Have NCAs helped or hindered economic growth? The most famous study looked at California, one of only a handful of states that do not permit NCAs. The de facto prohibition of the agreements affected skilled and non-skilled workers alike, and employees high and low could jump from job to job without any fear of legal reprisal. The mobility seems to have disseminated innovation very swiftly from company to company, creating the kind of dynamism and technological spillover that helps foster long-term success. The prohibition of NCAs clearly benefited Silicon Valley. Further proof was provided by the comparison to another claimant to high-tech supremacy: Route 128 in Massachusetts. The conclusion was that California's ban -- and the embrace of the agreements in Massachusetts -- helped tilt the balance of power to California.
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Not a problem (Score:2)
Get rid of non-compete clauses so people can go wherever they want with the knowledge they have.
We should also get rid of any law which says someone who works for government can't leave and use their knowledge working for a firm lobbying the very place they just left.
No problem, right folks?
Re:Not a problem (Score:5, Informative)
No one thinks ex-government employees lobbying because of what they know is problematic. It's an issue because they're selling who they know, those relationships. And, more importantly, what \they're selling to current government officials is the ability to also become a highly paid lobbyist... if they vote the right way now. It's a deferred bribe/government official safety net.
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Non-compete clauses are close to slavery.
Re:Not a problem (Score:4, Insightful)
Non-compete clauses are close to slavery.
It is difficult to convince the powerful to care about the weak. It is better to argue that a change of policy is in their own interest.
California has long banned non-competes. That has benefited both workers and investors.
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Non-compete clauses are close to slavery.
It is difficult to convince the powerful to care about the weak. It is better to argue that a change of policy is in their own interest.
California has long banned non-competes. That has benefited both workers and investors.
I agree completely. Under no circumstances should it be possible to sell a right. (In a non competes case the purchase price would be the original job.)
You also shouldn't be able to be bought off by the rich and powerful to silence your story. They can pay and ask you not to speak, but they shouldn't be able to go after you if you do it anyway.
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Under no circumstances should it be possible to sell a right. (In a non competes case the purchase price would be the original job.)
You also shouldn't be able to be bought off by the rich and powerful to silence your story. They can pay and ask you not to speak, but they shouldn't be able to go after you if you do it anyway.
This is why I think we should eliminate the fungibility of intellectual property. If patents and copyrights were an inalienable personal right of the creator rather than being real estate, any exploiting IP that you created would have to maintain a personal contractual relationship with you, and only within your lifetime. No more having to sign away your IP rights on employment and then having the company kick you to the curb and plug in a cheap offshore replacement. No more patent troll companies hoarding
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Under no circumstances should it be possible to sell a right. (In a non competes case the purchase price would be the original job.)
You also shouldn't be able to be bought off by the rich and powerful to silence your story. They can pay and ask you not to speak, but they shouldn't be able to go after you if you do it anyway.
This is why I think we should eliminate the fungibility of intellectual property. If patents and copyrights were an inalienable personal right of the creator rather than being real estate, any exploiting IP that you created would have to maintain a personal contractual relationship with you, and only within your lifetime. No more having to sign away your IP rights on employment and then having the company kick you to the curb and plug in a cheap offshore replacement. No more patent troll companies hoarding the inventions of others.
This is why I think we should eliminate the fungibility of intellectual property. If patents and copyrights were an inalienable personal right of the creator rather than being real estate, any exploiting IP that you created would have to maintain a personal contractual relationship with you, and only within your lifetime. No more having to sign away your IP rights on employment and then having the company kick you to the curb and plug in a cheap offshore replacement. No more patent troll companies hoarding the inventions of others.
"Fungibility" presumably isn't the word you're looking for, which more-or-less means "interchangeable." [merriam-webster.com] Money is fungible, because $1 from one source can be interchanged with $1 from another source, and one usually doesn't care exactly where any given dollar came from.
On the other hand, any particular valid patent is by definition novel (or it would be invalid, see 35 U.S.C. 102) and therefore not "fungible" with another.
I suspect you mean "alienability," [wikipedia.org] which refers to the ability of an owner of a right
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A fungible asset is anything that can be exchanged for other assets in trade. My point is that intellectual property is treated in law as though it were real estate, not as an inalienable (cannot be separated from the original owner) personal right.
Imagine the world we would have if you could, at a time of financial desperation, sell off your right to free speech, entirely or on specified topics. The purchaser could speak on your behalf, while you would be legally silenced unless you came into money and wer
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Using them to protect trade secrets... (Score:5, Informative)
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Many of these contracts are unenforceable just as in your example, and the companies are well aware of this but they're added in because they know many employees will be afraid of breaking the terms and won't consult a lawyer, so they will end up obeying them needlessly and at their own cost.
Re: Using them to protect trade secrets... (Score:2)
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Using them to protect trade secrets is one thing,
Using them without giving fair compensation (aka lots of money) is unacceptable.
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Warning: rant ahead.
Part of me wants to allow red states to go ahead and [bleep] their constituents as punishment for voting for deregulation of slimy corporations.
They were not happy with ACA keeping them alive, bitching that premiums kept them from buying a new snowmobile. Cadavers like snowmobiles also. Ride on, Deady Reddy!
Re:Using them to protect trade secrets... (Score:4, Interesting)
Non-competes have nothing to do with protecting actual enforceable IP. There are laws for that. Trademark, Copyright, patents and some methods that I am probably not aware of.
None of those require NCA to be protected. The primary place that I have seen NCAs litigated is with sales people and consultants. The plaintiff is mainly concerned with silly stuff like client lists and relationships.
If the company sucks enough that the customer will follow a consultant and/or the account manager, rather than sticking with the parent company for value adds (such as leveraged knowledge, larger available workforce, economies of scale with regard to cost controls) then the parent company isn't doing their job anyway, and probably deserves to lose the business.
Those who say NCAs are used to attempt capture the employees are absolutely correct, everyone else seems to have swallowed corporate line.
Sad.
Re: Using them to protect trade secrets... (Score:1)
When I worked in sales, I applied my persuasive skills and knowledge of the companies inner workings to getting the company to provide good service to my customers. Lots of companies do as little for the customer as they can get away with.
Given a competitive market with other companies offering equivalent products, customers will indeed follow good sales staff to a new company.
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Agreed, but as much as it makes us feel good when customers follow us (me as a consultant, you as sales). We have to look at the facts that if our replacement was empowered, trained, and presented with materials to help retain the customer... it would make our job a lot harder.
An example, if I left Delloitte (which I've never worked for) and established my own consultancy, I would be able to beat them on rate, but I would be able to compete at scale, nor would I be able to provide ancillary and coordinated
Re: Using them to protect trade secrets... (Score:1)
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Worker protections? You mean the deplorables? We hate them, remember?
Another example of how you hate the right. When Hillary was talking about the deplorables, we both know she was talking about the alt right. What I want to know is why you keep smearing the entire right wing with the same brush.
For someone who identifies as right wing you sure seem to despise them. It's weird. Maybe that's why you're so angry.
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Given that you said "jobs prospects" instead of "job prospects", I'm guessing you're in the U.K. My advice -- come to California.
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So far as I know there's no country in the western world that lacks "Right to work" laws. That means that if your specialty limits your career options and you're in a non-compete, then you should be able to employ "right to work" since no company has the right to lock you into your position by making it impossible to find employment elsewhere.
I think right to work sometimes even has requirements that if they don't offer you an exit clause... something like "You can't compete for 2 years,
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Get another lawyer. So far as I know there's no country in the western world that lacks "Right to work" laws. That means that if your specialty limits your career options and you're in a non-compete, then you should be able to employ "right to work" since no company has the right to lock you into your position by making it impossible to find employment elsewhere.
Well they can, you just have to be clearly compensated for it. Otherwise it is an unfair restriction of trade.
I, too, once worked for another (Score:3)
I've had several employees leave to start their own businesses doing the exact same thing we do. I'm friends with all of them. We steer work to each other, and collaborate on larger contracts to compete with the bigger firms.
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Hating people who leave you (and your tribe) is an instinctive, knee jerk reaction hardwired into the more primitive part of our brains.
Overcoming it is the medieval equivalent of marrying you and yours to other noble families to consolidate alliances.
Even if you work for yourself, there's a mighty good probability you once worked for others in the same field. Don't hate your employees for wanting the same opportunity.
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Of course... if the guy gets your daughter pregnant, spray paints your living room and then puts up billboards bashing your company.... I think then there's reason for enmity.
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Of course... if the guy gets your daughter pregnant, spray paints your living room and then puts up billboards bashing your company.... I think then there's reason for enmity.
That son of a bitch put up negative billboards? Cretin.
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Wrong article link (Score:3)
You linked to "Huawei Reveals the Real Trade War With China"
They're unenforceable and always have been (Score:2)
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Whether or not it's enforceable isn't as important as whether or not you can afford the $100,000 in legal fees to prove it's not.
lawyers still try (Score:2)
Two California companies I signed with had NCAs. Rather than argue with legal I just crossed those section out, and any other I didn't like, then signed it. Didn't hear any complaints back.
Optimum currency area (Score:2)
Politicians supporting liberal economy should be against NCA, since labor mobility is a tenet of the Optimum currency area [wikipedia.org] theory.
Correct Article Link (Score:1)
employee's skills (Score:2)
You get employed because you have skills gained from working in the field.
The employer wants a new employee to hit the floor running.
But they don't want those skills taken to the next employer.
They are the employees skills, not the employers skills.
A company is the sum of the abilities of their employees.
Rewrite them, Don't accept the boilerplate (Score:2)
For software engineers, most NDA/NonCompetes I've seen are written to claim they own all IP except for what you exclude in a postage size stamp area at the bottom--completely unfair to the employee. I write in that area: See attached exhibit A for addendum to this contract, where I then explain that when there are clauses that are in confusion, then the addendum takes precedence, and then I list everything I've ever done, regardless of how booring, including anything posted to my blogs, social media, and p
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Have you had a lawyer weigh in? Because that doesn't sound like it really you really shifted the burden of proof. Since "no one read it", it doesn't really reflect a meeting of the minds. And since the addendum solely would be seen as the enumerating the IP that is excluded, I wonder if it would have to be read.
I am not a lawyer, but I do know that trying to put overbroad/too lopsided language in a contract can backfire. Esp. if the other party has deeper pockets.
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Yeah, on the IP assignment parts it's just my own text verbatim. On the clauses that are added they come from a more fair employment/work-for-hire agreement, I've had several attorneys work on. When I say nobody reads it, I mean I never get back a countersigned copy until I ask for it. But I ask for it, and then I get it--usually by the CEO or other exec level person (working in smaller orgs).
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Most companies I've worked with roll the three together into one agreement (Non disclose, Non compete, and IP assignment).
It does suck tho.