Last year I went through a very long process applying for a job that had the potential to be interesting and challenging. It entailed no move on my part, mostly work from home, some international travel, and the opening of new lines of business, both geographically and in terms of industry sectors. The salary was OK and the benefits reasonable, so I seriously considered the offer.
Then I received the written offer of employment and was shocked by the non-compete clause. I would not be able to work for any company that was deemed by my employer to be a competitor, for two years. Nor could I go back to my own consulting practice and do work for any of these companies. My employer would have the right to determine who these companies were, after the fact. Needless to say, I turned down the job offer.
Charles Green at The Trusted Advisor reports on a recent decision by the California Supreme Court that strikes a major blow against non-compete agreements for employees, basically stating that no employer can deny future employment to a worker. As Green states:
This is simple human dignity; employers do and should have many rights, including various forms of intellectual property protection (trademarks, patents, copyrights)—but those rights have their own distinct protections and can stand on their own. Using employees as chattel to further a former employer’s competitive adventures is unnecessary—and thoroughly out of sync with a modern global business world.
I have often referred to salaried employment as indentured servitude, and practices such as non-compete clauses are examples of this culture. Perhaps with more worker mobility, a growing body of free-agents and less dependence on corporations for work, we may see this culture changing. Let’s hope that the lawyers hear about this soon.
In a (growingly) Network Society, and in the field of knowledge workers, these kind of clauses (or attitudes) do make less and less sense.
This is the best way to cut your links from the network and become an isolated node of it. Hence, to be thrown out of the network at all.
Non-compete clauses have always been tough to enforce in California, a legacy of our free-lance culture.
Ha–indentured servitude is right and exactly why I have avoided salaried employment for most of the past 10 years.
I did have occasion to speak to a lawyer following one unfortunate instance where I accepted employment and was told that non-competes are notoriously difficult to enforce and the greater the geographic radius and the longer the time limit, the harder they are to make stick. Unfortunately I think companies count on the fear factor that takes hold when most people sign a non-compete. I’m not sure that they intend to actually chase after a person as much as bully employees into assuming that the clause is enforceable and therefore something by which they must abide.
You make me think of the Bette Midler song, which includes the lines:
You don’t own me
Don’t try to change me in anyway
You don’t own me
Don’t tie me down, cos I’ll never stay
I don’t tell you what to say
I don’t tell you what to do
So just let me be myself
That’s all I ask of you
Even if someone pays my salary, they don’t own me, any more than I own the cab driver who takes me from the station to the meeting, or the plumber who unblocks my drain. It’s payment due for services rendered. The employment contract is a bit like an indefinite SLA, in a way. In the UK, employment law is somewhat more in favour of the employee than seems to be the case elsewhere – especially the US, from what I can gather.
That said, just this very day I was thinking that, in all sincerity, my raison d’etre is to serve people. I never feel more content, more fulfilled than when I am allowed to make someone’s life (or even just immediate circumstances) better. I can’t remember who it was (a great American poet, I seem to recall) who said “We are put here to help others. I’m not sure what the others are here for.”
So, let the eye-rollers roll their cynical eyes. You don’t own me, but I choose to serve.
How d’you like them apples?
So far no comments about the value of non-compete clauses. Must be a radical bunch reading this blog.
Harold, I would never sign a contract that included a clause like that. Whatever field I work in, the best opportunities for career progression are going to be with a competitor. Good grief – where else would I go?
Most organisations have some form of restraint of trade agreement, but there are usually ways around them. I will say though, that, when my current boss thought my ex-boss (who has gone to a competitor) was trying to headhunt me, he got distinctly ruffled about it, so I suspect there might be a clause against him poaching staff – but not against my going to work there, if that makes any sense.
My thoughts exactly, Karyn. How would I be able to work in my chosen field? On top of that, I had more experience in e-learning than this company did. I thought most people would think this way, but many have signed these agreements in the past.
At my previous employer, +5 years ago, I had a similar clause and it was a real pain after I left, as I didn’t want the legal hassles. Luckily they went bankrupt soon after I left, so it never became an issue. However, I’ve learned to avoid these clauses.
BTW, my last comment was a bit tongue-in-cheek ;-)
They have no legal legs. I know, as I took my Hawk Communications non-compete clause to a lawyer and she said it was useless. I called them and told them I’d be working for their competition and they did nothing. Non-compete clauses are a way for companies to intimidate people. Nothing more.
It may be useless in the end, but how much time do you want to spend in court? I just avoid these kinds of clauses at the onset.