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Ex-MS GM Can't Work 'Anywhere In the World' For Salesforce 282

Posted by timothy
from the free-market-at-work dept.
theodp writes "Be careful before you sign a Microsoft non-compete agreement, kids. GeekWire reports that King County Superior Court Judge Kimberley Prochnau has enjoined former Microsoft General Manager Matthew Miszewski from 'working in a marketing role in salesforce.com's public or commercial sector anywhere in the world.' So what did onetime Wisconsin State CIO Miszewski do to warrant the global ban? 'He was a major evangelist for Microsoft,' explained Judge Prochnau, who added that the 'thrust of the order is to preclude him from being the evangelist for Salesforce.com that he was for Microsoft.' Microsoft, which has warned Congress that restricting the flow of talent is ruinous to America, said in a statement that the company is pleased with the ruling."
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Ex-MS GM Can't Work 'Anywhere In the World' For Salesforce

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  • Nothing to see... (Score:5, Insightful)

    by Frosty Piss (770223) * on Saturday April 16, 2011 @02:33PM (#35841550)
    His "non-compete" agreement is only valid for a year. I'm sure he put away enough moo-la at MS to take a vacation... I know how some here feel about "non-competes" and MS, but good grief, he signed the agreement, he knew what was in it, and it's only a year.
    • by MoonBuggy (611105) on Saturday April 16, 2011 @02:46PM (#35841690) Journal

      I agree with you, but in general there is the question of whether or not it should be legal for large companies to require 'abusive' contracts; "just turn down the job" is a luxury people may not have. The 'slippery slope' conclusion is that everyone starts requiring them, meaning that you either have to remain in your job however crappy it becomes or you're unemployable in any industry using your skill set, at least for 'x' months, and you end up flipping burgers. Realistically, though, non-competes are generally the domain of high level executives who have plenty of other options and, more than likely, enough cash to take time off if they feel the need. As long as it stays that way, I see no problem.

      • Re: (Score:3, Interesting)

        by Anonymous Coward

        "Realistically, though, non-competes are generally the domain of high level executives who have plenty of other options and, more than likely, enough cash to take time off if they feel the need. As long as it stays that way, I see no problem."

        And yet it's becoming more and more common to have lower and lower level peons sign them. It's *not* staying that way at all.

        • Re:Nothing to see... (Score:5, Interesting)

          by arivanov (12034) on Saturday April 16, 2011 @03:10PM (#35841854) Homepage

          I have seen 18 month non-compete for lowly lab grunts in private R&D companies and trainee IPR people with circa 45K pound per annum. Anything but exec.

          • by fuzzyfuzzyfungus (1223518) on Saturday April 16, 2011 @04:09PM (#35842338) Journal
            Not to worry. Once we bring back indentured servitude and debt slavery, noncompetes will seem entirely reasonable by comparison.
          • by kent_eh (543303)
            I know everyone in my company from receptionist to CEO has been required to sign one every few years (due to HR putting some other provisions in it).
            Not requested, but required.
            How do you "don't get hired at a place that requires that" if you already work there??
            • by Grishnakh (216268)

              In my moral judgment, if you work at such a place, I see absolutely NO ethical problems with stealing as many office supplies as you can carry.

      • Re:Nothing to see... (Score:5, Informative)

        by hedwards (940851) on Saturday April 16, 2011 @03:03PM (#35841804)

        Judges don't always go along with the agreements. Former employees of Arthur Anderson were allowed out of their agreements when they fled the firm due to the massive fraud scandal following Enron. Edwards v. Arthur Andersen LLP The Death of Non-Competition Agreements? [theiplawblog.com]

      • "just turn down the job" is a luxury people may not have.

        You aren't some special unique uebertalented snowflake?

        Everyone else here is.

        • That's the problem with exceptional people -- some of them don't take pity on the majority of people who are average.

          And there NEEDs to be some laws governing the crap that companies can put in their employment contracts -- MOST people just read the policy and say; "Well, I guess their is nothing I can do." They don't know what can't be enforced.

          I consider it fraud to prey upon the uninformed. Employment contracts are as bad as credit card contracts these days.

          Too often, I see these people who think they ar

      • meaning that you either have to remain in your job however crappy it becomes or you're unemployable in any industry using your skill set, at least for 'x' months, and you end up flipping burgers.

        cmon now, thats what they are trying to do by having your employer offer insurance. It makes it much harder to take off for a while if your paying that much a month for insurance without them..

        • Haha I am happy to see that someone else gets this.

          And don't forget... the company WANTS to give you insurance because then they can pay you less, and still get tax credits for the insurance. If they had to give you enough cash to buy your own insurance, it would cost them a lot more.
      • by Surt (22457)

        I was asked to sign a non compete for my first 3 jobs out of college.
        (Of course, I just modified the contracts, and no one cared).
        But most of my peers signed without modification and could have been prosecuted.

    • His "non-compete" agreement is only valid for a year.

      Sorry, that simply cannot be true. To not mention that in the summary would amount to lying by omission, and theodp is well known for not misinterpreting statements, exaggeration or other similar underhand tricks.

      Retract that vile calumny immediately, sir, or I shall have to ask you to step outside!

    • by angel'o'sphere (80593) on Saturday April 16, 2011 @03:43PM (#35842108) Homepage Journal

      Nevertheless in many countries that agreement would be void as it contradicts the law. Unless ofc, he is payed or otherwise compensated by the contractor for that year.
      But companies in the USA are so lucky that that state has no laws in the areas that are relevant but only case to case decisions.
      Also: as a non american, it slightly irritates me that that US judge so bluntly extends his area of judication over the rest of the world.
      angel'o'sphere

      • While I am against "non-competes" generally, that latter part actually makes sense.The judge isn't extending her jurisdiction to the whole world, it is strictly confined to Washington State.

        Since Microsoft is in Washington State, the judge has jurisdiction to rule that his competing with Microsoft, anywhere in the world, would be "injurious" to that Washington corporation and a violation of a Washington contract.
      • by tnk1 (899206)

        Its pretty common for judges to extend their rulings outside their jurisdiction. European courts do it all the time, especially with humanitarian cases. No one is saying that they are going to follow him to Asia or Europe and make him quit his job... they can't. However, if he enters that jurisdiction or has assets there, he could be sanctioned. If you make a law which creates agreements in your jurisdiction, not only can they make judgments, they need to make those judgments as it was local law that wa

    • You might be right -

      If execs can get past the crazy lifestyle, their $10,000 in savings might last a while. Then the world can hire them and the ori. board wsted 9 months on strategy direction.

      Then they can do what they want.

    • While I suspect that this particular guy might be OK, but the bolded part of your argument would be as applicable to indentured servitude as it would to 'non-compete' clauses. Exactly how much can you sign away?
    • Gang, for once Fristy was right.

      "Only a year"

      It seem to take about seven years for a paradigm shift, so "only a year" should be easy for a smart company that wants to kill time. Better yet, havehim produce pieces of work "for games" that "just happen" to have mobilr phone implications.

    • by Xest (935314)

      Well, that and the fact that just because a US judge rules a global non-compete agreement lawful doesn't mean that it is actually lawful globally.

      So in other words, the "anywhere in the world" claim is utter bullshit. There are plenty of countries where such non-compete agreements are completely unenforcable such as many European countries that don't cater to these things.

      In countries where non-compete agreements aren't enforcable it's done based on the concept that a company should be willing to treat peop

  • by MightyYar (622222) on Saturday April 16, 2011 @02:34PM (#35841554)

    Let me start by saying that I think that non-competes are generally bullshit. I personally gave up some benefits to avoid signing one where I work, just on principle.

    That said, for high-level people with insider information, it may be a special case that I could be persuaded to accept. In any event, this guy only has 8 months left on his contract. The summary leaves out that vital little detail.

    • by perpenso (1613749) on Saturday April 16, 2011 @03:05PM (#35841822)

      ... for high-level people with insider information, it may be a special case that I could be persuaded to accept ...

      Confidential information (trade secrets, etc) can never be revealed by a former employee. The presence or absence of a non-compete agreement is irrelevant to such information.

      For the most part non-compete agreements are a mind game and are not enforceable. Exceptions usually involve owners who sell a company. For high level execs the legal justification usually has nothing to do with non-competes but rather that in their new role they will inevitably use confidential information of the former employer. Note "use" not "reveal", as in quietly make decisions without fully explaining their reasons.

      • Confidential information (trade secrets, etc) can never be revealed by a former employee.

        Confidential information can never *legally* be revealed by a former employee. But you've got to prove it.

        The presence or absence of a non-compete agreement is irrelevant to such information.

        Incorrect. Taking up a position with a rival gives a motivation, perhaps a strong one, to reveal the information and try to get away with it. Prohibiting such employment in the first place is much easier than trying to prove that

        • by perpenso (1613749)

          Incorrect. Taking up a position with a rival gives a motivation, perhaps a strong one, to reveal the information and try to get away with it. Prohibiting such employment in the first place is much easier than trying to prove that such information was revealed after the fact.

          In California and many other states (nearly all ?) the courts have considered that argument and found it to be less persuasive than the opposing argument that a person should not be hindered in their ability to take their general knowledge and skills from one employer to another, that they should not be restrained from practicing their profession. Specifically in California the courts ruled that non-compete agreements are against the public interest and unenforceable. Exceptions usually involve owners who a

    • Here's an interesting thought: Microsoft probably knows a good number of companies that *don't* have a non-compete and are always actively engaging and recruiting from. Its ok when they get to grab others from competitors but not ok when competitors try to recruit their staff.

  • Hmm, how does this work when one company is one state and the other is in another and they are suing one another? I suppose if he stayed out of Washington state he could work for Salesforce.com. By the time the ensuing court case was heard by the court his non-compete clause would be terminated (since it is up in about eight months.)
  • Bad judge (Score:2, Insightful)

    by Anonymous Coward

    Non-competition agreements are not meant to be enforced this way. This is akin to preventing a software developer from ever making software for another company, rather than preventing one from working on Yahoo! Messenger if his previous job was working on Windows Live Messenger. The problem with the latter is that he could "steal" a Microsoft "secret" and use it in Yahoo! Messenger, whereas the problem with the latter is that it prevents the guy from ever using his general purpose skills, education, and e

    • This is akin to preventing a software developer from ever making software for another company,

      No it's not. He only has to wait another eight months, and then he's fine.

    • I highly doubt this guy learned any Secrets Of Evangelism Known Only To Microsoft (TM) and is stealing them for Salesforce. The judge is an idiot.

      You are mistaken. For example as an evangelist this guy may know who Microsoft's weakest clients are, those most receptive to a pitch from Salesforce. He may even know their specific concerns and use such insider knowledge in his pitch.

    • by pclminion (145572)

      This is akin to preventing a software developer from ever making software for another company, rather than preventing one from working on Yahoo! Messenger if his previous job was working on Windows Live Messenger. The problem with the latter is that he could "steal" a Microsoft "secret" and use it in Yahoo! Messenger

      It has nothing to do with stealing secrets. The protection of trade secrets is done with non-disclosure agreements, not non-compete agreements. A non-compete is just a bunch of bullshit that s

    • "Non-competition agreements are not meant to be enforced this way."

      Yes, they are. It is the main reason for their existence in the Corporate world.

      Whether they can legally enforce it that way is a completely different matter. But you had better believe that *IS* the intent.

    • It is similar in a way to "shrink-wrap" license agreements. It is highly doubtful whether they are legally enforceable, but the company that includes them in their products DOES intend them in a serious way.
  • by Seumas (6865) on Saturday April 16, 2011 @02:37PM (#35841592)

    I had a girlfriend exactly like that, once. She was all "If I can't have you, then NOBODY CAN HAVE YOU!". It got pretty scary there, for awhile.

  • by Anonymous Coward on Saturday April 16, 2011 @02:51PM (#35841724)

    I was dissuaded from accepting employment with Amazon after an attorney warned me that he'd handled several cases where Amazon came after an ex-employee who was now working for a web startup. There are few online business niches Amazon doesn't consider itself related to, and Amazon, like MS, does business all over the world, so the usual restrictions on geographic area don't apply.

    All of those employees, when threatened, apparently backed down and started their careers over in packaged software design, in-house corporate business apps, or brick-and-mortar marketing. They couldn't afford to go up against Amazon, or to "sit out" of the online business for the 18 month non-compete term required by Amazon.

    • by eddy (18759)
      Wouldn't the non-compete include pay for the duration? If not, why would anyone EVER sign one of these?
      • by Surt (22457)

        Desperate people will sign almost anything to get a job.

      • by Jthon (595383)

        I've seen it both ways, but more often than not it doesn't include pay such as in the case of Microsoft. Their draconian anti-employee contract is a major reason I don't work there today.

      • by compro01 (777531)

        Wouldn't the non-compete include pay for the duration? If not, why would anyone EVER sign one of these?

        Of course not. This is the USA, not some socialist hellhole like Germany.

        As for the second question, because it is near-impossible to get a technology-related job that doesn't require one.

        • by Jthon (595383)

          As for the second question, because it is near-impossible to get a technology-related job that doesn't require one.

          Move to CA they're illegal here already and most companies won't event attempt to make you sign one.

  • Too effective to be allowed by law.
  • Precluding someone from working in their field at all and putting food on their table is a form of violence. I realize he probably has enough money to eat, but when this kind of judgment is applied to the people making far less money the inevitable tragic response shouldn't surprise anybody. I could see him restricted from marketing for Redhat, but this is a sickening example of imperialism of the very rich. We are facing problems now that our founders never envisioned and we need to stop this once and for
  • take a trip to the ISS and be the first sales manager who's LITERALLY "Out of this World!"

  • I think it depends on the length of the agreement and the impact on the employee. If the noncompete bars an individual from using his or her current skill set at any job in the industry - that's effectively banishing an employee from employment for the length of the agreement. That should not be allowed. Another consideration is does the noncompete remain in effect after termination? Because working under the threat of being fired and made unemployable for a year is a hellish thing to contemplate. Here
    • I think it depends on the length of the agreement and the impact on the employee.

      If non-compete came with full pay for the period of non-competition, then it might be reasonable.

      • I agree, they should require that a person be paid, but the only two holes are:

        • What if your new employer finds they can't keep your job open for the duration of your non-compete and there's no longer a job waiting for you?
        • What if you work in an industry which is so fast-paced that sitting out of it for a year will leave you unemployable?
  • by gearloos (816828)
    The world is far better with one less Microsoft Employee spreading wisdom like a virus. things like it's okay to turn out a product that is obviously second (or third) rate is a phenomenon of the Microsoft Era. Smaller, less monopolizing, companies have to actually turn out product that performs as advertised or they would be out of biz. Microsoft, on the other hand, just says wait until the next version to fix that. They will pay again. Bull, Screw everyone who does, or has worked for them. Mcdonalds is hi
  • In California, non-compete agreements are illegal except in a few narrow situations (such as a partner in a business).

    "every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void."

    • by PPH (736903)
      Good for California. But this court decision was handed out in King County, WA, Microsoft's back yard. Needless to say, our politicians and judges are all Microsoft's bitches.
  • You should not be able to prohibit a person from doing what they're good at, as long as they're not doing something illegal or stealing proprietary information. The fact that you don't like this person's choice of (former) employer, or what they're doing now, is irrelevant. This ruling sets a bad precedent IMO.
  • by Jthon (595383) on Saturday April 16, 2011 @04:35PM (#35842568)

    I had an offer to work at Microsoft just out of college. I was seriously considering the offer until I saw the draconian anti-employee non-compete they wanted me to sign. I told the recruiter that I didn't feel comfortable signing such an agreement since Microsoft works in so many different areas that there was no way to avoid some sort of conflict. I was assured by the recruiter that they don't usually enforce the agreement. Maybe that is generally true, but this ruling definitely proves that they will enforce it on occasion. Instead I ended up with a different company in CA where such draconian non-competes are illegal and most companies don't even attempt to get you to sign one.

    I should also add that not all non-competes have to be as evil as Microsoft's. One company I had an offer for had a similar non-compete but it had a clause that if they decide to enforce it as long as it's in force and you're looking for other gainful employment they would continue to pay you your salary until the non-compete expired. I felt that this policy was more than fair since it allowed the company to decide how important enforcing the non-compete was and didn't have such negative consequences for you as an employee should they choose to enforce it. I personally feel all non-competes should include such a clause otherwise I would NEVER consider signing one.

  • by NoSig (1919688) on Saturday April 16, 2011 @04:42PM (#35842616)
    Non-competes can be a necessary harm to inflict on employees. For those rare cases, the company should be required to pay the employee the same salary and benefits for the duration of the non-compete. Too expensive? Well that is the exact harm the employee is being subjected to so if that is too expensive then a non-compete isn't really appropriate, now it is. The employee can actually be harmed beyond this amount if his skills are deemed to have become out of date from not having done work in his field or if he has to turn down a better job than the one he had or if he develops a depression or other ailment from his forced inaction.
    • by Ecuador (740021)

      I see it differently. When you are offered a position you factor-in the non-disclosure agreement. How much is it worth to you, that much more they have to pay you to accept the position, otherwise you take another offer. You can't say, yeah, great salary, I will sign that non-disclosure to get it and then turn around and say it was unfair!
      But in any case, courts have overturned agreements in many cases where the employers were abusive of them and employers usually don't try to enforce them to non-critical e

  • by DaveGod (703167) on Saturday April 16, 2011 @07:39PM (#35843870)

    In UK, and I think EU generally, non-competes are much harder to enforce. The emphasis is on the ex-employer to prove that they have a legitimate business interest at stake - merely being in competition is not enough, it would have to be e.g. you moving to a competitor and previously had access to customer lists. That interest would have to be sufficient to override the public interest in free trade.

    Court will also have to decide that the restrictions are reasonable. If not, the whole thing is invalidated, they cannot reduce an unreasonable term to a reasonable one. Time and distance are obligatory textbook examples (6 months within city limits, OK, but forever globally is never going to fly), as are some form of sensitive information - particularly access to customer lists.

    IANAL, my training is to spot a potential issue and give a ballpark-ish explanation why a client needs to see one, but I'll have a go at guessing this may well have been held valid here too. The position of the employee is highly significant. Any restriction for a supermarket shelf-stacker isn't going to hold, but a bigwig marketing GM for an international company going to a competitor... Well, global might still be a bit of an ask but state-wide I doubt would be much of an issue.

    (In practice it's not uncommon to require lengthy notice periods that the employee can be put on gardening leave.)

  • by protektor (63514) on Sunday April 17, 2011 @02:50AM (#35845790)

    I suspect if this case were appealed that the judge would be over-turned because of the unreasonable scope of the ruling. I have never ever seen a court enforce a non-complete globally. That is just outrageous and it is punitive to the employee and might even be a violation of his Constitutional rights to pursue happiness through employment in his field. I seriously doubt he is irreplaceable. He might be hard to find a replacement but there is someone out there perfectly capable of doing the same exact job. Microsoft isn't going to eliminate the position just because this guy is leaving. They are clearly admitting that he is replaceable. How far down the organizational chart is this guy? He doesn't even manage a group of people does he? If he is such a threat to Microsoft that he might seriously damage their business by going to work for their competitor then clearly they see his skill set as extremely valuable and should pay him for the time they are making him sit out of the workforce in his field. The fact that he could sling burgers doesn't matter. The issue is the restriction of trade by Microsoft on the employee.

    Positional salary is not enough to warrant barring him from his field of work. If a company is so threatened by a VP leaving that they give them a parachute/exit package to make sure they go to another field, then they can do the exact same thing for this guy.

    I would love to see this case fought and over turned. The more cases a judge has over turned the worse the judge looks and the harder it becomes for the judge to stay on the bench. Ruling in such a harsh fashion in favor of the corporation is such crap. In my opinion she basically gave the employee a legal bitch slap. The US legal system and Constitution is all about protecting the minority and the little guy and this judge could use a good legal smack of an over-turned case to remind her of that. Microsoft may make the argument that every software company is their competitor, so none of their employees should be allowed to work for any software for 1-2 years.

      That right there is complete crap, and is more of illegal monopolistic attitudes that Microsoft got smacked down for by the DOJ. Microsoft needed to have their corporate back broken in half by the DOJ as punishment, rather than the light tap on the wrist that they got. Microsoft did significant damage as well as long term damage to the computer industry and they should have had to pay dearly for it. Microsoft didn't become a monopoly by playing fair and having the best products. If you believe that you need to read some of the history of the computer industry. Microsoft isn't as bad as it was in the past, but they still show those attitudes and ideals most of the time. I would have broken the company up in to 3 groups, OS group, Application Group, and Hardware Group, with the highest rate/price they can charge other companies, being what they charge each other for products and services. If you don't put a limit like that in place they will just sell to each other ar dirt cheap rates and effectively be one company again.

  • Moderation ... (Score:5, Interesting)

    by angel'o'sphere (80593) on Sunday April 17, 2011 @09:25AM (#35847258) Homepage Journal

    ... some rogue moderator has more or less moderated down all my posts from yesterday.

    This sucks.

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