this post was submitted on 27 Sep 2023
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In several countries they are outright illegal unless the person is paid for the non-compete period.
In the US, however....
From what I've read and been presented as long as you can prove they stop you from being gainfully employed they are barely worth the paper printed on. I could be very wrong though.
In any " At Will" state. A few states might have some ridiculous shit going on.
California for the most part considers these illegal agreements.
Every US State is an "at will employment" State.
https://en.m.wikipedia.org/wiki/At-will_employment
That's a very different and far less employee friendly situation.
In your case an ex-employee can still be stopped from taking certain better paying jobs (because he or she can still find what the Law deems as "gainful employment" even if paying less) all the while the ex-employer pays nothing for limiting the freedom of that person, plus the onus of proof if fighting the non-compete is on the ex-employee, not on the ex-employer.
Meanwhile in those other countries the ex-employee has to pay the ex-employer for the non-compete (and if it's taken to court prove that they were paying for it) or the non-compete simply gets thrown out by the court, with no need for the ex-employer to prove anything.
Your is not a good and fair situation because an entity can still leverage its position of power to obtain benefits (quite possibly very significant ones) from a person after the period of a contract is over without having to pay for it, it's simply not as extremelly bad as becoming unable to feed yourself (by not being able to find "gainful employment"). Sure you're not completelly totally fucked, just very fucked.
That's not at all comparable with the situation were by law they have to pay an ex-employee for it and it has to be set in stone contractually from the start (i.e. if they don't used it it's their problem) - in your case the ex-employee starts from having his or her post-employement choices limited at no cost for the ex-employer and having to dig his or her way out of it whilst in less shitty countries the ex-employer has to have a proper contract with actual monetary compensation to obtain that benefit of an ex-employee refraining from taking certain jobs, even it ends up being useless.
I'm actually shocked so many people seem to think what you described is a good thing, when it's clearly a "the employee is still fucked at no cost for an employer, just not so totally fucked they end up homeless and starving to death".
Where are you getting all this. The employee doesn't have to do anything. The employer would have to sue them for breach, at the employers cost. You present it like a no cost to the employer thing. Of course never sign one of these anyway. They can't fire you instantly for it. Tell them your lawyer will read it and you will get back to them. Should buy you a week or two to look for a new job.
The no cost for the employer thing is because the employee will likely refrain from taking certain offers after they leave, because they're concerned about the costs of being sued and the possibility of losing the case because they could have found "gainful employment" (just not that specific offer) - as you described, it seems to imply that the ex-employee, having signed a non-compete does legally have to refrain from taking certain job offers unless they literally have no other choice.
The mere risk of being sued and losing the case leads the ex-employer to refrain from taking certain jobs, providing the ex-employee with benefits (such as denying certain expert resources to competing companies) at no cost.
When the law is crystal clear that non-competes are only valid if paid for, there is no such threat hanging over the ex-employee (as not only would the ex-employer see its case summary thrown out if they took it to court, they would actually pay all the legal costs of the ex-employee) hence the ex-employee has zero pressure in their choice of future employeers.
It's the difference between a non-compete being a genuine risk for an ex-employee if broken versus being no risk whatsoever (literally worth less than the paper its written on).
That said I totally agree that when one is in a position to do so (which by now I personally am), just refuse to sign the non-compete. This is however rarelly the case for the more junior types or when the market is bad (such as my case below which happenned just after the first Tech crash).
(Mind you, I was once pushed to sign one with an "or else we will withdraw our job offer" threat - just after the first Tech crash in 2000, so I would be hard pressed to find anything else before running out of savings if I didn't took that job - and I pretty much started looking for another job from day 1 there, without them even having an hint of that was going on, taking my time and being chosy, and 11 months later, after having become pretty essential to the team, I had something much better and just dumped them with the explanation that "You chose to make it an adversarial relationship from the start, so I'm leaving now that I have the kind of offer I prefer and don't really care about what my leaving with the minimum notice will do to your projects". Funny enough I later found that in that country non-competes were worthless if not paid, so all that shit they pulled was useless and created a situation which was ultimatelly a net loss for them).