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The Courts Government News

CA Court Favors Employees in Trade Secret Decision 239

Posted by michael from the sanity-prevails dept.
legal_tinker writes "At grep.law, Tait Graves writes: 'In a majority of states, you can be enjoined from starting a new job because of what you know, even if you have done nothing wrong.' A California court just rejected that idea in California."
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CA Court Favors Employees in Trade Secret Decision More

CA Court Favors Employees in Trade Secret Decision

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  • That's not going to happen soon with the FBI! (Score:4, Insightful)

    by G0SP0DAR ( 552303 ) on Tuesday September 17, 2002 @08:27PM (#4278428)
    I remember a comical article from /. a while back about the FBI not wanting to hire geeks because so many geeks aren't physically fit. However, that was not the focus of the actual linked story. That basically said that the FBI wants hackers, but their ethical screening keeps them from hiring people who think like hackers. That only eliminates 100% of the candidates! If you know how to gain unauthorized access to a secure network, the FBI wants you, but they won't be able to hire you!
    • That basically said that the FBI wants hackers, but their ethical screening keeps them from hiring people who think like hackers. That only eliminates 100% of the candidates! If you know how to gain unauthorized access to a secure network, the FBI wants you, but they won't be able to hire you!

      That is rubbish. Most criminal hackers don't have the skills you would want for a white hat team. Hackers don't pitch their skills against security exerts, they take advantage of the incompetent.

      You have to be much smarter than a hacker to catch a hacker. The few people with that level of skill can earn three times as much in industry.

      The media promotes this hackers as uber-geeks myth because a) it sells papers and b) they are often socially engineered by the hackers. I watched a TLC program on Mitnick last night, never once did the reporter ask if Mitnick might be socally engineering him with a carefully chosen set of lies to make Mitnick sound like a victim rather than a crook.

      • Re:That's not going to happen soon with the FBI! (Score:5, Funny)

        by dboyles ( 65512 ) on Tuesday September 17, 2002 @10:17PM (#4278885) Homepage
        I agree with your post as a whole, but this part kind of struck me:

        I watched a TLC program on Mitnick last night, never once did the reporter ask if Mitnick might be socally engineering him with a carefully chosen set of lies to make Mitnick sound like a victim rather than a crook.

        What did you expect?

        Interviewer: Mr. Mitnick, are you not telling me the whole story, but rather inventing facts in an attempt to mislead me into believing that you really didn't do anything wrong?

        KM: Yes. [pause] Damn!
      • You have to be much smarter than a hacker to catch a hacker. The few people with that level of skill can earn three times as much in industry.

        Three times as much as what? Unethical hackers? I didn't know there were a lot of positions for offensive hackers.

        (but I imagine that a position in industrial espionage pays more then a position in security...)
      • IMHO, what *is* rubbish is the elite, "better than thou" attitude of the majority of self-proclaimed "white hat" hackers out there.

        I'm not directly employed in "computer security", nor do I really want to be - but I know enough about it to comment on it.

        First of all, there's a percentage of these "white hat hackers" that are identical to the "black hats", except they never got caught. They're really no more ethical or trustworthy than any other hacker - but they were smart enough to go where the money was, before they got in legal trouble.

        There are also quite a few "white hats" in the industry that know much more about "working the media" to build their desired image than they do about actual hacking and hacking prevention.

        I don't deny that the press loves to talk up the "high profile" black-hat hackers as more of a threat than they really are. Perhaps it's par for the course though - as the "white hats" seem to do the same thing for their security businesses and consultancies.

        Also IMHO, any company with a well-trained I.T. staff should be able to do a reasonable job of securing their systems without spending money on some "security specialist". Most people in this job role have lots of expensive certifications (Cisco CCIE, etc.) - but when you look at the bottom line, they're just being paid to be the "fall guy" if something gets hacked.

        In corporate America, your biggest security issues are co-workers sharing passwords, writing them down so they can remember them, using weak passwords that are easily guessable, never changing passwords (or when forced, rotating between the same 2 or 3 passwords every time), and disgruntled workers taking advantage of the security clearances you gave them so they could do their job to begin with.

        The overpaid "security specialist" can sit there all day long and play with firewall configs and new encryption keys for VPN authentication, but 99% of the time, the problems are much more basic.
      • The media promotes this hackers as uber-geeks myth because a) it sells papers and b) they are often socially engineered by the hackers.
        It seems you don't know any real hackers. All that I know are über geeks. They are rare, but true hackers in the strongest sense of the word do exist. Believe it or not, Defcon is still a reasonably good place to see for yourself--you just need to realize that all the people that are easy to notice and look down upon are not the ones to look for.
  • get a list of authorized companies that they can work for, how about you?

    • And that entire concept is bullshit. I can work for whoever the hell I want to work for.

      The other major point being, why should a person be expected to cripple their professional advancement by being forbidden to use knowledge that they have amassed?

      This is a very American thing. I hate to say that the influence of it, like patents and copyrights and all the other stuff you guys are perpetrating down there, is starting to poison us elsewhere. Thanks a lot. Yeah, you're the home of the free, alright - my ass.

      • The other major point being, why should a person be expected to cripple their professional advancement by being forbidden to use knowledge that they have amassed?

        The problem is that the person voluntarily gives up the future use of that knowledge to advance professionally now. If they don't agree to the companies terms, they don't get the knowledge in the first place. Sometimes professional advancement takes sacrifices -- long hours, long trips on the road, stress, and sometimes things like signing non-disclosure agreements.


        This is a very American thing. I hate to say that the influence of it, like patents and copyrights and all the other stuff you guys are perpetrating down there, is starting to poison us elsewhere. Thanks a lot. Yeah, you're the home of the free, alright - my ass.

        Much of the world would like America's prosperity and much of the world envies it. Well, these are the sorts of things you have to do if you want that prosperity.

        And like I said before, allowing people to make agreements between themselves is an expression of freedom.

        Finally, copyright and patents try to ensure that people responsible for creating the things you enjoy are compensated for it. If you don't compensate them, then you're just using them. Using the product of someone else's labor (creative or otherwise) without compensating them for it is a form of involuntary servitude and thats not freedom -- its the opposite. Now I agree that the system needs reform, but I the priciple is correct: Getting paid for you're work means you're free. Other's using your work without compensating you for it borders on slavery. You're just being used.

        • USA arrogance. (Score:2, Insightful)

          by Anonymous Coward
          Much of the world would like America's prosperity and much of the world envies it. Well, these are the sorts of things you have to do if you want that prosperity.

          Crap. We don't want to be like America at all. That's very typical of the kind of Septic arrogance we could do without. We don't envy American (Govt) war mongering, engineering of governments (Who trained Osama and installed the dictatorship in Iraq in the first place?). We have better economic growth than the USA. We are better at steel manufacture and lamb production than you are. We have better social policy - we look after our poor people better. We have fewer homeless people, slums. We have accessible healthcare for all, not just the rich. We have a nicer climate overall. We have more glorious beaches with fewer people. We rarely have to queue for anything for more than five minutes. Our hospitals are not full of gunshot wounded.

          All we want is a fair go. You get to club us with a big stick if we put a trade tariff on, and you tariff our stuff right out of your market. And should we complain about your trade tariffs and win in the World Trade Organisation, you just tell us to get stuffed. And stuff all we can do about it. You regularily steal our markets overseas with your government subsidies. You trash the world environment and you won't let anyone else attempt to clean up (Kyoto).

          We don't envy you. We want you to grow up, and look after what you have and leave the rest of us alone. And while you're at it, you might get your UN dues paid.

          You don't have to grind everyone else into the ground to get ahead. Non Disclosure Non Compete Crap. Patents Office should be paid for quality not quantity. Copyright and Patents do not get people fairly compensated for what they do. Just ask Janis Ian. Just ask a chinese Nike factory worker. If you don't look after the poor people, they must rob you to survive. And that applies to countries too.

          Disclaimer. I do have friends in the USA who are just as horrified by the pervasive ignorance of their compatriots as I am.

          I post anon because I don't like being attacked by the idiots in the majority.
          • Take a look at the large number of immigrants to the U.S. Take a look at the large number of foreigners attending college in the U.S. Obviously somebody likes it better than where they came from...
            • Take a look at the total absence of foreigners from western European countries. Obviously not everyone thinks the US is all that great.

              Sure, it's better here than in India, but I'd prefer to live in a country that's competetive with Sweden in standard-of-living.

          • Re:USA arrogance. (Score:5, Insightful)

            by Guppy06 ( 410832 ) on Tuesday September 17, 2002 @11:46PM (#4279243)
            "We don't envy American (Govt) war mongering, engineering of governments"

            What, you're more proud of European government engineering? Proud of the examples certain EU members have mde of various African and SE Asian countries?

            "We have better economic growth than the USA."

            First off, after the past year I doubt it. Secondly, just because you're growing faster doesn't mean you've caught up yet.

            "We have better social policy - we look after our poor people better. We have fewer homeless people, slums. We have accessible healthcare for all, not just the rich. We have a nicer climate overall."

            These have beeen brought up so often that I'm actually getting curious whether or not anybody really has any data on this to back these up.

            "We have more glorious beaches with fewer people."

            Only if you assume all beaches in the US are on the Florida penninsula, southern California, or Oahu.

            "We rarely have to queue for anything for more than five minutes."

            And by that I assume you're suggesting that we do?

            "Our hospitals are not full of gunshot wounded."

            Oh really?

            "You get to club us with a big stick if we put a trade tariff on,"

            Unless it's GM food, huh? Or just about any produce, for that matter? Bananas ring any bells?

            "You trash the world environment and you won't let anyone else attempt to clean up (Kyoto)."

            About the only way we're preventing Kyoto from being implemented (which we aren't... or "weren't") is by not signing on. IMO, trying to claim that that is our way of actively trying to prevent outher countries from implementing Kyoto themselves is really stretching it.

            "And while you're at it, you might get your UN dues paid."

            We might, as soon as UN diplomats start paying off their NYC parking/traffic tickets.

            "Disclaimer. I do have friends in the USA who are just as horrified by the pervasive ignorance of their compatriots as I am."

            I dislike blind patriotism myself, but I fail to see how your post makes you any better than those you claim to dispise. You don't like how pro-American jingoists make overly-broad, baseless and unprovable statements, but you think that your anti-American jingoism is somehow better? "Proving" that the US is the Great Satan requires just as much proof as "proving" the US is utopian. And either way, silly little catch phrases bleated out by political activist sheep just won't cut it.

            "I post anon because I don't like being attacked by the idiots in the majority."

            You think you're in the minority here? Obviously you're new to Slashdot. I'm surprised there isn't a "+1 Anti-American" mod option yet.

        • Re:People Laid off from my company (Score:4, Insightful)

          by schon ( 31600 ) on Tuesday September 17, 2002 @10:10PM (#4278850)
          The problem is that the person voluntarily gives up the future use of that knowledge to advance professionally now.

          Sorry, but nobody should have to sign away their life just to 'advance professionally'.

          And voluntary? Yeah, just like the kids that work in asian sweatshops. They do it cause they love it, right?

          If they don't agree to the companies terms, they don't get the knowledge in the first place.

          Umm, how exactly is this 'voluntary'?

          Sounds a little like "I'll give you this nice, shiny doughnut if you sell me your soul."

          Again, the logic can be (and probably is) used by people who run sweatshops.

          If a company wants to keep it's employees, it should treat them like people, not inventory.

          Much of the world would like America's prosperity and much of the world envies it.

          True enough, but I doubt that you could count any developed nations as part of that.

          Well, these are the sorts of things you have to
          do if you want that prosperity.

          Ahem, bullshit.

          In case you hadn't noticed, the US isn't really #1 at anything besides tooting their own horns. With the arguable exception of movie production (which is fraught with it's own evils) I'm hard pressed to think of anything that you're better at than the rest of the world.

          And in case you hadn't heard, there are much better (as decided by the UN) places to live and work - primarily because of people with your mindset.

          allowing people to make agreements between themselves is an expression of freedom

          Yes, but who, exactly keeps watch to ensure that one party isn't being taken advantage of. Someone has to watch out that a megacorp with an army of lawyers doesn't take advantage of it's workers.

          Or do you believe that all labour laws should be abolished, and we should return to the 'good old days' of child factory workers, and indentured servitude? Because that's exactly where your argument takes you.
          • "True enough, but I doubt that you could count any developed nations as part of that."

            As an example, Ottawa is trying to figure out how to fix the way that the Canadian standard of living is only about 75% of the US without actually getting too involved in the US market (as Canadian productivity is also a bit lower than US and they'll get mauled).

            And they're a G-8 member.

            "In case you hadn't noticed, the US isn't really #1 at anything besides tooting their own horns."

            If we really don't do anything better than anybody else, how is it that less than 5% of the world's population is responsible for over 25% of the planet's gross domestic product? Dumb luck?

            "And in case you hadn't heard, there are much better (as decided by the UN) places to live and work - primarily because of people with your mindset."

            Got links?

            (Of course, I could be cynical and point out that this is the same UN that feels that Sudan is a better member of the Commission on Human Rights than the US. But I won't, if for no other reason than because at least three trolls will respond to that statement saying something to the effect of "John Ashcroft has made us worse than Sudan!" and will get modded up to +5 Insightful)

            "Yes, but who, exactly keeps watch to ensure that one party isn't being taken advantage of."

            "The price of freedom is eternal vigilance."
            • If we really don't do anything better than anybody else, how is it that less than 5% of the world's population is responsible for over 25% of the planet's gross domestic product? Dumb luck?

              Creative accounting. Flipping burgers adds USD 5 per hour to your countries gross domestic product, while it takes highly skilled work to do the add the same 5 bucks per hour in a third world country. I don't think gross domestic product is a good number to use in this particular comparison.

              -John
            • I could be cynical and point out that this is the same UN that feels that Sudan is a better member of the Commission on Human Rights than the US.

              Is this the same US that has the highest per-capita incarceration rate in the world? The same US that imprisons people with no charges, in secret locations, for months on end? The same US where people waiting on death row are being freed left and right because of DNA evidence (too bad for the innocent ones that were first in line for the chair)?

              How exactly do you think the US excels in human rights?
            • "And in case you hadn't heard, there are much better (as decided by the UN) places to live and work - primarily because of people with your mindset."

              Got links?

              Of course [undp.org]

              Or would you prefer something from CNN [cnn.com]?

              Ottawa is trying to figure out how to fix the way that the Canadian standard of living is only about 75% of the US without actually getting too involved in the US market

              Ahem, "Got Links?.

              Considering that Candada has ranked higher than the US for as long as I can remeber (in the UN study, it's been #1 for the past six years straight,) I find this claim dubious.

              who, exactly keeps watch to ensure that one party isn't being taken advantage of.

              "The price of freedom is eternal vigilance."

              You didn't answer my question, you just repeated it. Here, I'll post it again:

              WHO keeps watch?
              • > > "And in case you hadn't heard, there are much
                > > better (as decided by the UN) places to live and
                > > work - primarily because of people with your
                > > mindset."

                From the looks of the article you pointed to, the US ranked sixth mostly because our life expectancy at the time was a hair under some of the others (and it looks like they were splitting hairs in at least the top ten). No mention of patriotic zealots.

                "Ottawa is trying to figure out how to fix the way that the Canadian standard of living is only about 75% of the US without actually getting too involved in the US market"

                Comments from a Canadian Parliament publication on the Canadian standard of living [parl.gc.ca] and the productivity gap [parl.gc.ca]. The table of contents of the whole thing can be found here [parl.gc.ca]. Needless to say, both of these topics have made the arguments for and against adopting either the US Dollar or a united North American currency in Canada to be more heated than it would be otherwise.

                "You didn't answer my question, you just repeated it. Here, I'll post it again:

                WHO keeps watch?"

                My answer: ultimately, you do. If you have trouble understanding what a contract says when you read it or have difficulty trusting the other party, perhaps you should consider not signing it.

          • And in case you hadn't heard, there are much better (as decided by the UN) places to live and work - primarily because of people with your mindset.

            Oh, the UN, well, that settles it then. Call us when they vote to move the UN headquarters to Dumbfukistan ;) How do they suffer through their cushy posts in NY? Yep, having representatives from all the world gather in NY in a nice building to criticize us and then beg for money really makes me feel inferior ;)

            The /. anti-US crowd has a bit of a psychological problem ... do I really have to explain why you feel motivated to slam the top dog at every turn? Hint: it ain't because he's not #1 ...

            And as a final note, I'm replying to you. You felt the need to reflexively bash, and I'm just replying. I don't need to toot my own horn, unless something comes buzzing around and needs to be blown away.

            • Oh, the UN, well, that settles it then.

              It should, unless you can show me a report from an another unbiased agency that states otherwise. The UN is as close to unbiased as you can get.

              having representatives from all the world gather in NY in a nice building to criticize us and then beg for money

              Ahh, where they hold their meetings should be irrelevant. IIRC the reason that it's in the US is because that was a condition set by you.

              And they don't "criticize" you and then beg for money. Once per year, they rank 160 or so countries based on "per capita income, health care, life expectancy and educational levels

              It's not criticizing you (unless you think that saying that someone else is #1) is considered criticizing.

              If you want to be ranked higher, do something about it (And I don't mean invading another country.)

              do I really have to explain why you feel motivated to slam the top dog at every turn?

              Nobody is slamming any "top dog" - they're pointing out that the US isn't the best country in the world in which to live.

              Hint: it ain't because he's not #1

              No, it's because he THINKS he's #1, when (at least last year), he's #6.

              I'm replying to you. You felt the need to reflexively bash

              No, I didn't - I felt the need to correct some wrong assumptions made by mc6809e - assumptions that seem to be an epidemic. mc6809e believes that the US is #1 (which it isn't), and that they're #1 because corporations had (or have) the right to trample over worker's rights (which also isn't true.)

              Call us when they vote to move the UN headquarters to Dumbfukistan

              If anyone is "reflexively bashing", it sounds like it's you.
          • Sounds a little like "I'll give you this nice, shiny doughnut if you sell me your soul."

            As long as it's a Krispy Kreme [krispykreme.com]...where do I sign?

        • Re:People Laid off from my company (Score:4, Insightful)

          by Stephen VanDahm ( 88206 ) on Tuesday September 17, 2002 @10:47PM (#4279026)
          "Much of the world would like America's prosperity and much of the world envies it. Well, these are the sorts of things you have to do if you want that prosperity."

          Saying that in order to be as prosperous as the US, you have to do everything the American way is like saying that since Grandpa Earl smoked a pack a day and lived to be 100, the secret to long life is to chain smoke. Perhaps NDAs and aggressive IP laws contributed to our prosperity, but perhaps if we didn't have those things, we'd be even more prosperous. Things are too complicated to easily determine what has and hasn't contributed to our success.

          I think that there's something essentially un-American about aggressive IP laws. I understand the need to foster creativity, but no one owes anyone else a living. If I rip off your copyrighted work, then you have the right to track me down and prosecute me. But laws like the DMCA restrict consumer choice and consumer freedom based on something that they might do in the future -- this really is an attack on our freedom. Corporations and individuals ought to have IP rights, but the responsibility of looking after those rights belongs to the patent/copyright holder, not to Congress, and not to the regular law-abiding citizen. I don't download MP3's and DIVX movies, and I shouldn't have to be penalized for someone else's problem. If they can't or don't want to track down individual violations, then they should change their business model. No one put guns to the heads of Hollywood execs and told them to make movies.

          Steve

        • Much of the world would like America's prosperity and much of the world envies it. Well, these are the sorts of things you have to do if you want that prosperity.

          I don't think so. The noncompete clauses in contracts are, I believe, a relatively recent invention. I don't believe they're more than 20 years old or so. I seriously doubt they existed back when the U.S. was becoming the power that it is today. Rather, it appears to me (having been around a little while) that the appearance and enforcement of noncompete clauses came about at roughly the same time that corporations started getting restrictive IP laws like the DMCA on the books. In other words, it looks to me like yet another symptom of the same disease.

          But, of course, I could be wrong...

        • Much of the world would like America's prosperity and much of the world envies it. Well, these are the sorts of things you have to do if you want that prosperity.

          Yes, yes, no. These are not required, necessary or beneficial. The real american values that have helped prosperity are good work ethics, faith in everyone having a chance to succeed, and (relative) lack of people envying each other's wealth.

          Your value of "let the [big] company coerce its employees to sign whoopass legal contracts because it has the power to do so" does not appear on list of favourable conditions for nations' prosperity.

          As to "... allowing people to make agreements between themselves..." would be fine, if and only if:

          Parties involved have equal rights and responsibilities. This doesn't seem to be the case in company vs. employees.

          Neither of parties would be able to coerce the other party to legally binding one-side contracts. You can claim that "you don't have to work that company", but the reality is that there's virtual oligopoly of "make 'em donate their kidney" - minded employer that use draconian employment contracts.

          And as much as many people hate the idea, governments / parliaments are about only external parties that could help balance this imbalance of power. Courts can help in some way by interpreting the laws, but they don't write the laws.

        • The problem is that the person voluntarily gives up the future use of that knowledge to advance professionally now.


          Nobody does any such thing. You give up
          some vaguely specified rights in exchange
          for some benefits. This vagueness is then
          subject to dispute. I think I agreed not
          to use your proprietary algorithms, you think
          I agreed not to use library X which I learned
          on the job. It can even be an honest disagreement,
          and things are not as clear-cut.

          For example, I've seen agreements that say
          that I give the right to whatever inventions
          I make "while rendering services to the Company" (paraphrased). I read that "while" as "9-5 Monday-Friday", a corporate droid may read that as "from
          your first second at the job until you are out
          the door for good". Everybody tries to derive their own benefit from this vague language. This
          is what the courts are for.

          And like I said before, allowing people to make agreements between themselves is an expression of freedom.


          Is allowing people to sign a pact whereupon
          one becomes another's slave for life and
          subject to organ harvesting at any whim also
          an expression of freedom? If you are willing
          to go this far, I will grant you that. And
          I'll raise you that breaking agreements
          upon changing one's mind is no less an expression
          of freedom!

          See, it all just depends on how far you're willing
          to take your sophistry.

          This is actually what turned me off to Randians
          and the like in the first place, but I digress...

        • One point of America is that there are many freedoms which _cannot_ be removed. Basically, if the entire hiring community adopts certain standards that require people to relinquish their rights, how does one find a job? Especially since the contract terms aren't know until late in the process. Therefore, it is reasonable to reject such unreasonable contract terms.

      • Re:People Laid off from my company (Score:5, Informative)

        by rodgerd ( 402 ) on Tuesday September 17, 2002 @09:05PM (#4278616) Homepage
        I can work for whoever the hell I want to work for.


        This is true in New Zealand to a large extent. The courts have consistently ruled that restraints of trade in employee contracts (a) cannot stop someone earning a living in their chosen field and (b) must be specifically compensated (that is, if you want me to sit on my hands for six months, you have to pay me something for that six months, not just claim my regular salary covers it).

        The only provisions which have been consistently upheld here are the ones relating to forbidding employees from soliciting clients or co-workers from their now ex-employer. Also, all bets are off in the case of redundancy (you can't sack someone and then prevent them from earning a living).

        Unfortunately, the popularity of the absurdly facistic contracts becoming standard in the US ("We own everything you've ever thought of now aand for ever and you can never work for anyone doing anything more meaningful than burger-flipping again") has influenced many New Zealand companies in the direction of putting illegal provisions in their emploment contracts - either because they're too stupid to consult a competant employment lawyer, or because they're cynically hoping the threat of legal action will allow them to beat employees into line.

        If companies put a fraction of the effort they put into trying to terrorise employees into making them happy while they're still at the company they'd probably get better retention of key personel.

        • Re:People Laid off from my company (Score:4, Insightful)

          by topham ( 32406 ) on Tuesday September 17, 2002 @09:11PM (#4278646) Homepage
          Which is exactly why I believe it should be ILLEGAL to place a clause in an employee contract which is expected to be unenforcable.

          It would quickly eliminate the crap from the employee agreements.
          • In New Zealand law, I believe the placement of unenforable clauses has been rule, in the past, to invalidate other clauses, leaving default employment law coverage in place. So, for example, if you have a legit restraint of trade (no poaching clients) with illegitiate clauses (you may not work for any company in any related field in a 50 km radius of the city you currently work in, a real clause from one of mine), you can poach clients, because that's been struck down.

            The courts here have ruled that way in an effort to prevent contracts being loaded up with rubbish; I've seen companies respond by then explicity state that provisions struck down shall not affect the validity of other provisions. I'm not sure why they feel trying to contract out of the law of the land will work, but there you are.

            (Usual disclaimers apply - IANAL, consult your lawyer, etc).

            To reiterate: if bufoons in HR departments and managerial roles spent this time on thinking of ways to keep the staff happy, they'd find far fewer retention problems.
          • I agree 110%. The thing I hate is that I'm now starting to see same of kind legasleaze in other places. Last one was the gym I go to. Their latest "waiver of rights" I had to sign basically said "you can leave your kid here at totlot [being a member and paying a fee] but if (s)he gets hurt, even if it's due to our gross incompetence or abuse, you can't sure us" (and although that's not word-by-word quote I'm not exaggerating here).

            I hate the fact companies are making people sign all kinds of waivers -- enforceable or not -- just because "it doesn't cost any", and just might be useful in future. And then they even sometimes admit "yeah we know it's not valid so there's no harm signing" (when someone points out contract stinks). Disgusting.

        • My brother worked for a US IT company, and they came around with such a horror contract. In the past, my brother simply crosses out the offending parts, and signs it. He then points out that (a) the provisions are illegal by court rules, (b) the company is foolish to be making contracts that are unenforceable, and (c) he would be foolish to sign things that are confusingly unenforceable that he doesn't intend to follow. Essentially, too much confusion is bad for business. The company, the last time, came back by saying that it is required in the terms of their bank loans. My brother, being aware that they are in a financial morass, tends to believe it. It remains very interesting that the banks, not content with seizing the companies, would appear to be attempting to get documents that would seize the workers as slaves, too -- even though the current laws forbid that. I can't help but notice how, in Argentina, the banks were very successful at changing the laws; thus, I tend to think that there may be some kind of a plan in the works. On the good side, the Bible has a ton to say about people who think they can do this and survive their own stupid power mongering. Since I have yet to see the wisdom in the Bible be wrong in the long term, I rather expect that (at best) I don't really understand what is going on, or (at worst) our illustrious banker owners will face the consequences inherent in their decisions. Meanwhile, though, I and my brother will take lousy jobs rather than sign false contracts.
      • Without wanting to disagree with you, there is a difference between taking general skills in a profession and taking proprietary information with you.

        If you read over the courts response VERY carefully you'll see they were not impressed by the actions taken.

        When I switched jobs I immediatly told my employer once the decision had been made. This gave them the oportunity to tell me to take a hike (and get paid for it for 2 weeks) and gave them the oportunity to exclude me from any meetings where they may have discussed anything proprietary. (I stayed the 2 weeks at a client site wrapping things up and preparing to train a a replacement. (Which didn't happen, but that was someone elses problem.))

        When the guy mentioned here made the decision to leave the company he worked for he did NOT inform them until a later date a couple of weeks later. He entered into an agreement at the beginning of the month and didn't leave the company till half way through. In such a position it is NORMAL to be immediatly dismissed. This guy stayed the 2 weeks to gather the last bit of information he could.

        It could have worked out that they would have allowed him to stay on for 2 weeks, to wrap up any outstanding issues and then leave. That isn't up to him though, it was up to his employer.
      • The other major point being, why should a person be expected to cripple their professional advancement by being forbidden to use knowledge that they have amassed?
        Because if Person A from Company A simply learns the skill at Company A, and then transfers with that skill and corporate insights to Company B, then Company A stands to lose money, right?

        It's simple in the US. When you have a question like yours, all you have to do is understand that someone stands to lose money. That's why you have to sign these things.

        This is a very American thing. I hate to say that the influence of it, like patents and copyrights and all the other stuff you guys are perpetrating down there, is starting to poison us elsewhere. Thanks a lot. Yeah, you're the home of the free, alright - my ass.

        Wish I could help you, pal. Believe me, since I live here, I really wish I could. I do my best and give generously to the EFF. But by lumping me (and most of the /. crowd) in with "you guys", you're fighting on the wrong side.

      • "This is a very American thing. I hate to say that the influence of it, like patents and copyrights and all the other stuff you guys are perpetrating down there, is starting to poison us elsewhere."

        Do they not have elections where you live? The American people are responsible for what has happened in America, but we don't vote in Canadian, Australian, or European elections, so what happens there isn't our fault.

        Of course, the United States has a lot of political and economic power, and we use that to pressure other countries into doing what we want. This puts Europe (as an example) in the difficult position of having to choose whether to cave in or to stick up for itself. However, there is a choice, and if Europeans choose poorly, it's their own fault.

        Steve
    • If they're firing you, get a job at a real competitor. They've decided that they don't need you anymore. If they can't realize that loyalty goes both ways and extends beyond quarterly reports, screw 'em. If those "authorized" companies were such a good match, why doesn't HR get together with their HRs for a little placement? Oh, because McDonald's and Wal-Mart are at the top of the list, right?

  • Good. (Score:1, Interesting)

    by Anonymous Coward
    A company can easily screw you over.

    Obviously, non-disclosure agreements are fair, but many companies will require you to not take a job with another company working on similar projects for X number of months/years/etc. If you do, they sue you.

    Now, similar is a word that includes everything when it comes to computers. If you're a true specialist in a certain area of technology, you've even more troubles in this area.

    What happens if you inadvertantly piss someone off? Oops, you've been fired, and you can't go back to work, because if you do, you get sued. Woohoo! Go go unemployment!

    Until stuff like that is prevented, have some free advice. Read, very carefully, the little contracts that your employer will attempt to make you sign. Hell, grab a lawyer if you're uncomfortable. It'll cost a bit of money to do that, but it's better than being unable to work other than in a McDonald's for a lengthy span of time.

    • Re:Good. (Score:5, Interesting)

      by WizardX ( 63639 ) on Tuesday September 17, 2002 @09:09PM (#4278632)
      That is really only true in certain states, NY being one of the worst offenders. Here in WI we are what is sometimes refered to as a right to work state. Simply put, by and large non-compete agreements (note to parent and et al are different from and NDA as NDA's cover only proprietary info), are not worth the paper they are written on. Sure, a company can force a person to abide by the non compete, if they are willing to pay the persons salary during the period of the non compete. (Like that will happen)

      Usually the only other time they are upheld is if they are very narrowly and specifically defined, and do not prevent a person from attaining gainful employment in area of their expertice for a similar salary.

      That is just Wisconsin, YMMV, like in New York, where you are basically screwed.

      IANAL

  • Old news (Score:5, Informative)

    by rossz ( 67331 ) <ogre@NosPAm.geekbiker.net> on Tuesday September 17, 2002 @08:36PM (#4278480) Journal
    This is very old news. California has long been a "right to work" state. That doesn't stop companies from putting clauses in the employment contract that are overtly a violation of state employment laws. Fortunately, those clauses can not be enforced. Yes, companies have tried to enforce unreasonable employment contracts and the courts have bitch-slapped them each time.

    • Re:Old news (Score:3, Informative)

      by mkldev ( 219128 )
      California is not, and has never been a "right to work" state, to my knowledge. And "right to work" has nothing to do with this issue at all. The term "right to work" refers to laws protecting workers from being forced to join a union to hold a job.

      For more information on what the term means, see www.righttowork.org [righttowork.org].

      • So I got the phrase wrong. Big deal. What I said still applies.

      • Re:Old news (Score:2, Insightful)

        by Associate ( 317603 )
        I agree. Here in NC, I've been told we are a right to work state. But, I thought it meant your old boss couldn't run all over town telling prospective new employers that you stole, falsified documents or were an ass hole.
    • If you read the linked-to opinion, what was at issue here was the doctrine of "inevitable disclosure" -- that an employee could be enjoined from working at a competitor solely on the basis that he would inevitably disclose trade secrets while doing so, thus violating trade secrets laws.

      The court did not invalide the concept of non-compete agreements, in which an employee is forbidden from working for a competitor for some period of time. In fact, the court mentions them as an explicit opposite to the current case.

      The net result is that the mere knowledge of trade secrets cannot, in the absence of a signed non-compete agreement, preclude an employee from working for a competitor. The italicized portion of my previous sentence is crucial.

  • enjoined? wtf? (Score:2, Insightful)

    by Gooberball ( 588899 )
    enjoin Pronunciation Key (n-join)

    tr.v. enjoined, enjoining, enjoins

    1. To direct or impose with authority and emphasis.

    2. To prohibit or forbid. See Synonyms at forbid.

    I guess this artice refers to #2. Apparently relating to knowing trade secrets. I'm kind of suprised this hasn't come up before.

    Not allowing people the freedom to work where they can because they've had experience at another company and know their "trade secrets" seems absurd. Companies will hire these people regardless of whether they have legal protection.

    Besides, everyone knows that the "secret sauce" is thousand island dressing...whoops! -America causes cancer.

  • About time! (Score:5, Interesting)

    by Quixote ( 154172 ) on Tuesday September 17, 2002 @08:40PM (#4278495) Homepage Journal
    From the article:
    A majority of states grant injunctions based on inevitable disclosure without any evidence of wrongdoing.

    This is so patently stupid (no pun intended). Hey: if the employer wants me to keep my trap shut, pay me. Keep me on a retainer worthy of the "secrets" that I may or may not have.

    These "non-compete" clauses in employment contracts are ridiculous.

    • Yes, Tyler Durdan had the right idea.
    • This is so patently stupid (no pun intended). Hey: if the employer wants me to keep my trap shut, pay me. Keep me on a retainer worthy of the "secrets" that I may or may not have.

      Is it just me, or does that sound a little Fight Clubbish?

      "Let's pretend. You're the Department of Transortation. Okay? Someone informs you that this company installs front seat mounting brackets that never pass collision tests, brake linings that fail after a thousand miles and fuel injectors that explode and burn people alive. What then?"

      --You are not a unique and beutiful snowflake. You are the same decaying organic matter as everyones else.

    • Re:About time! (Score:5, Informative)

      by gila_monster ( 544999 ) <<traveler.in.black+sd> <at> <gmail.com>> on Tuesday September 17, 2002 @08:54PM (#4278561) Homepage
      Hey: if the employer wants me to keep my trap shut, pay me.

      This is exactly what they should do...but it's up to you, the employee, to negotiate it into your contract, because the company won't offer it.

      1) When negotiating your original employment contract, tell the company that you will sign non-compete agreements only if they provide you with a severance package generous enough to pay your living expenses during the entire period. The NCA is obviously worth something to them -- they should pay for it. Note: it's unlikely that you will get the deal described, but it may prompt a change to the NCA, such as a shorter time, or a less generous (but better than zero) severance.

      2) DO NOT SIGN ANY DOCUMENT AT THE EXIT INTERVIEW WITHOUT A LAWYER TO INTERPRET THE DAMN THING. You are NOT required to sign jack-doody if you don't particularly like it. You will want to consult an attorney to determine what your rights may be and advise you as to the best path for you. Do not let HR browbeat you into anything else. You have nothing to lose at the exit interview, so don't play their game.

      This does happen in the industry, and it can work. But it's up to you to make it happen.

      • Re:About time! (Score:2, Interesting)

        by horse ( 70241 )
        Why should you negotiate such a deal if you live in a state where non-compete clauses are illegal? (And they should be illegal -- they take advantage of the fact that most employees are not lawyers and don't really know much about the options available.)
        • Well, if at all possible it would be best to never sign any contract assuming it's invalid. In best case, well, not signing it as good as signing, and in any other case you are better off not signing the damn thing.

          And yes, I know it's much easier to sign due to social (or whatever) pressure than make a fuss about it... too bad since it'd be good if people did confront those obviously non-enforceable "contracts"; perhaps they wouldn't be used as widely as they are.

      • Actually, there is one thing you may lose: COBRA. Depending on the person, that may or may not be important.

        • Yes, and in case of layoffs, also severance. In most cases (most states) severances are purely optional (sort of thank-you-for-your-services note written by dollars)... even though people sometimes take them for granted.

          This is of course very different from most european countries, where there usually are federal laws that mandate obligatory severances (or something similar, like having to inform layoffs 3-6 months early; usually companies just pay remaining salary and ask people to leave); in those cases there's little company can do in exit interview.

      • You are NOT required to sign jack-doody if you don't particularly like it.

        What are they going to do, fire you?

    • Hey: if the employer wants me to keep my trap shut, pay me.

      Thats the point of the contract: you agree to keep your mouth shut about their trade secrets for a period of time and they hire/pay you. If you don't think you want to keep those secrets to yourself then don't sign the contract.

      I mean really, is it too much to ask that people honour their agreements?

      • Re:About time! (Score:5, Insightful)

        by dillon_rinker ( 17944 ) on Tuesday September 17, 2002 @09:34PM (#4278725) Homepage
        So, here you are, a sole wage-earner, parent of two, and spouse of one. Everyone you interview with wants you to sign a piece of paper that says "Hey! You can't quit working for us, because we'll take away your livelihood. However, we can fire you because we don't like your newe haircut." You've got a family to feed and bills to pay. You realize it's stupid to sign it, but it's even stupider to work at McDonald's to avoid non-compete agreements. So, you sign it.

        Is it too much to ask that the government GUARANTEE that I be able to work if I want to? I don't want to cheat or steal from anyone; I don't want a guarantee of a job or particular pay grade. I want a guarantee that if someone wants to hire me, they can.
        • You just described a core problem with the Lockean notion of consent: is it really consent when you have no other option?
        • Everyone you interview with wants you to sign a piece of paper that says "Hey! You can't quit working for us, because we'll take away your livelihood.

          You've got it backwards: The piece of paper says "If you quit working for us, you can't take away OUR livelihood." Much of what makes these companies what they are are their trade secrets and this is especially true in an industry that makes its money on the information it has. If you take this information away to some other company, you may be taking the original company's livelihood away.

          Is it too much to ask that the government GUARANTEE that I be able to work if I want to?

          If companies are afraid to hire because they might lose their trade secrets, what can the government do to make them hire you? Would they want to hire someone who might stab them in the back just like the last company?

          • You've got it backwards: The piece of paper says "If you quit working for us, you can't take away OUR livelihood."


            If that was the limit of most US-style restraint of trade provisions - that you can't tell future employers about proprietary knowlege - that wouldn't be a problem. Fact is, restraint of trade/IP clauses have expanded to the point where companies are claiming ideads you had before you worked at the company, ideas you work on in your own time with your own equipment, the right to bar you from working in your field even though you're supplying no company confidential information.

    • Re:About time! (Score:3, Informative)

      by Salamander ( 33735 )

      You need to be very careful here. Inevitable disclosure is a doctrine related to trade secrets, which is often closely related to but not the same as non-competes. They're separate parts of an employee agreement, for example, and at least one of the cites (Lumex v. Highsmith) in the linked ruling actually rejected inevitable disclosure but upheld a non-compete. This ruling is a victory for employees, but its scope needs to be carefully considered.

  • I live in Australia and not in the majority of states... It would suck if you had worked for a company with a major market share(e.g. microsoft) and they decided to enjoin you! 'I want to work for ***' 'Do they use Windoze?' 'Yeah, but not where I am' 'But they use Windoze...sorry, you can't work for them.' At least now you can still get a job in California.

  • I don't see it (Score:3, Insightful)

    by ealar dlanvuli ( 523604 ) <froggie6@mchsi.com> on Tuesday September 17, 2002 @08:44PM (#4278512) Homepage
    [disclaimer] IANAL, but I read the entire brief.

    I don't see how this sets precident for the entire state of California. It seems to me they have just added another case to a large stack of differing opinions?

    It does appear in this case with the facts presented, that the origional employer had a weak case, the judge all but says so. But read the decision carefully, it appears the judge agrees with the Pepsi vs. Redmond case. [note Redmond is a last name here, not MS]

    If someone is a lawyer and can point out where I'm wrong that'd be great, but I'm not convinced this set any precident at all.

    • Re:I don't see it (Score:5, Informative)

      by SiliconEntity ( 448450 ) on Tuesday September 17, 2002 @09:38PM (#4278748)
      I don't see how this sets precident for the entire state of California. It seems to me they have just added another case to a large stack of differing opinions?

      The reason is because, as quoted in the decision:

      No published California decision has accepted or rejected the doctrine of inevitable disclosure. [Page 19]

      So this is the first California decision on the issue, and they wholeheartedly rejected this doctrine. (Inevitable disclosure says that employees can be restricted in changing employment to a competitor because they will inevitably disclose trade secrets as part of their work.) That makes it an important and precedent-setting decision, albeit just for the state of California.

  • Californian courts have jurisdiction in California (Score:4, Funny)

    by dpt ( 165990 ) on Tuesday September 17, 2002 @08:49PM (#4278536) Journal
    Who would have guessed! Lucky we have /. to tell us these things.

    A California court just rejected that idea in California

    Where else were they going to reject it? Madagascar? Tasmania?

    In other news, a Welsh court has rejected the DMCA in Colorado.

  • California court just rejected that idea (Score:4, Funny)

    by sapped ( 208174 ) <mlangenhoven.yahoo@com> on Tuesday September 17, 2002 @08:55PM (#4278566)
    A California court just rejected that idea in California.

    That's a pretty good thing. Imagine if a California court rejected that idea in Iowa for example. I could see a few peeved people on both sides of the fence.

    --

    Employing incompetence: $35/h
    Fixing the resulting mistakes: $1000's
    Employing me: Priceless [geocities.com]
    • You'd be surprised how often courts of one nation/state are called upon to interpret and apply the law of another. Two californians can sue one another in California and the law applicable could be that of Botswana if there are enough factors connecting it to that country, in which case, you have to prove what the law of Botswana is, the California court has to interpret it and apply it, and you get a california judgment based on the law of another country altogether.

      But the headline and summary was kinda dumb, yeah.

  • Not suprising (Score:5, Informative)

    by www.sorehands.com ( 142825 ) on Tuesday September 17, 2002 @08:58PM (#4278578) Homepage
    California puts tight limits on non-compete agreements. The doctrine of inevitable disclosure is an attempt to get around the limits of a non-compete.


    I know Tenessee rejects this because I was contacted by a Mattel employee to said that Mattel practically got laughed out of court when they tried to stop him from working for another company.


    Even if it is not valid, an ex-employer making a threat to file a lawsuit can kill a job offer. The new employer can say, "the hell with this."
    At least with this, an employee may file an intentional interferance lawsuit.

  • CA Court Favors Employees
    Computer Associates has a court? Is there anything they don't do? What do they call it, CourtIT? And it favored the workers over the corporate masters - that can't have been CA's intention. Yet again they've fouled something up. Oh well, that's what happens when you buy everything under the sun, fire the talent that made it even marginally useful, and then try to tie it into a unified architecture. In their favor, their products are cheap...that's probably how the employees could afford to buy the judge.

  • Yay... (Score:3, Funny)

    by Duncan3 ( 10537 ) on Tuesday September 17, 2002 @09:26PM (#4278700) Homepage
    Now people dont have to worry about the hundreds of job postings that look like this...

    "Networking startup competing with Cisco seeks employees. YOU MUST CURRENTLY WORK AT CISCO."

    OK, only a majority of job postings look like this, the rest want 10 years of .NET experience.

  • that can have different outcomes based on only opinions and interpretations, not facts. Let's just say I had an inordinate amount of knowledge about network security because I worked at say...@steak, but then I left @steak to join say...ISS. Well, if for whatever reason @steak doesn't want me working at ISS, then they can bring their meathammers down on me in court, and seeing as how I would be the individual facing a corporate lawsuit, the massive burden of legal expenses would be on me, whereas it's just a write off for the company. It effectively gives prior employers complete control of your future employment if you were smart enough to have learned anything at your last job.
    • It's called intentional interference, and if their case is without merit, you're going to at least get your legal fees back, probably also get a good chunk of what would have been your salary at the other company.

  • Blue pencil rule (Score:3, Informative)

    by kefoo ( 254567 ) on Tuesday September 17, 2002 @09:37PM (#4278739)
    Fortunately here in Ohio (I don't know about other states) we have a law called the blue pencil rule. It allows a judge to rewrite a non-compete clause in an employment contract if it's too restrictive and prevents someone from finding new employment.

  • Non-compete (Score:2, Interesting)

    by Anonymous Coward

    Many companies ask you to sign a non-compete clause, but they are totally unenforcable. My brother was asked to sign a non-compete contract by his employer stating that he would refrain from contacting anyone he had on his sales list for 24 months in the event he left the company.

    Both my mother and I had purchased material from my brother for our respective companies. Does that mean that my brother can not associate with his own family members for a period of 24 months after leaving the company? Try and enforce that one.

    Remember if you train for a avocation or trade that is your chosen profession. If someone actively tries to prevent you from practicing that profession, they are engaging in restraint of trade.

    I was an IT professional for 7 years before being headhunted by a computer OEM. They asked me to sign a non-compete clause and I did, otherwise I wouldn't have gotten hired. After two years I left the company and started my own consulting firm with the full knowledge of that company. I'm still waiting for them to try to enjoin me from engaging in a profession I was involved in prior to working there. It won't happen, because they know the contract is pure bunk.

    • >Does that mean that my brother can not associate with his own family members for a period of 24 months after leaving the company?

      no, it means he cannot actively pursue his family-members as clients for his new employer or company. However.. if those familymembers decide for themselves that they need another supplier, they're free to seek out your brother, as long as your brother does not initiate contact. At least that's how my employer explained it to me...

      IANSL (I ain't no steenkin' lawyer)

      //rdj

  • For those whining "it's only in california"... (Score:3, Insightful)

    by janda ( 572221 ) <janda@kali-tai.net> on Wednesday September 18, 2002 @12:09AM (#4279317) Homepage

    INAL.

    Yes, this decision was made in california, and therfore, no it is not automatically binding on the other states, however...

    Anybody, anywhere, can now include this judgement as part of their evidence regarding their non-competition lawsuit.

    Regardless of how small, all victories help us information workers.

  • It's about the time pendulum started swinging back (Score:3, Interesting)

    by symbolic ( 11752 ) on Wednesday September 18, 2002 @12:31AM (#4279393)
    I know why a company might want to prevent an employee from seeking alternative gainful employment in their chosen field, but we're talking about a job here, not indentured servitude. The company benefits from the employee's skill and expertise, and while said employee may easily gain experience as they carry out their employment, the employer benefits from this, so in the end, it's a wash.

    As for employment contracts, there's such a thing as an unconscionable contract- that is, a contract so one-sided that it grants the other party a significantly unfair advantage. Signed or not, I believe that these can be thrown out if such a condition is deemed to exist. (I'm not an attorney, though, so there may be some detail(s) I've overlooked.)

    It's good that this precedent now exists. In a free market, an employee should have every right to pursue whatever (legal) opportunity will help advance his/her career.
  • And now for something... Completely different (thank you Monty Python)

    A California court just rejected that idea in California.

    Moderation: -1(Redundant). If it's a California Court, of course it would reject the idea in California.

    And for michael: Moderation: -1(Oversight).

    I hate to be overcritical, but damnit, we're supposed to be GEEKS here. We need to show some intellignence.

    And yes, I'm willing to take the Karma hit for this statement, so mod away...
  • All americans aren't morons. Seriously. We really don't believe that IP is so precious that someone can be sued for programming and then using that knowledge again. This is bullshit, no matter if you're red blue purple green (or a california court) Now enough american bashing. Fuck. I'm in favor of global thinking, but not neccessarily the buisness practices that come with it. Try to remember we're all human. I agree with a lot of people in iran, scotland, hell even canada (just a joke people!) and its more global thinking that is going to get us farther. (enter sarcasm) actually now that i think about it, i'd much rather be in a place where no one repsects anyones culture. "fucking americans and your intelectual property laws, you've never done anything right" sounds about right. (/sarcasm) seriously people..... I thought you were people that are more enlightened and less worried about imaginary boundries...... One thing that americans sure are good at is eating. dont forget we're the most obese country in the world, and damn proud too. Also, we have hip-hop, and you betta reckognize how much of a global influence hip-hop music has had. biiiiaatttch

  • really? in California!?!??! (Score:3, Funny)

    by cdf12345 ( 412812 ) on Wednesday September 18, 2002 @01:23AM (#4279551) Homepage Journal
    "A California court just rejected that idea in California."

    I suppose when California Court starts rejecting ideas in other states I'll pay attention.

  • Trade secret my ass. (Score:3, Insightful)

    by Performer Guy ( 69820 ) on Wednesday September 18, 2002 @03:05AM (#4279851)
    Some trade secret. You realize that this guy is a lock salesman. The big trade secret is his ability to persuade Home Depot et.al. to give his company shelve space in preference to competitors. Reading the decision his ex-Boss sounds like a nightmare. The competition are trying to hire him because of his ovious talent but even his old company say his ex-boss Robert Steinman made disparraging comments about him (this is their Dilbertian attempt to argue the employee was taking revenge). The same bozo threatened to end the guy's career in an exit interview.

    The icing on the cake here, the really unbelievable thing here is that one company is a subsidiary of the other from the decision "Sladge is a subsidiary of Ingersoll-Rand", unless this is a typo and "Sladge" should read "Kwikset".

    Either I've found an error in the court decision or the world is going insane.

    Best move of the whole trial? On disclosure the defendant hands over a bag full of destroyed disks and shredded papers etc.
    • Dunno what the decision said, but Schlage is a subsidiary of Ingersoll-Rand. Robert Steinman was "installed" as president when I-R bought the company, and he's essentially running it into the ground. Ever since then Schlage has discontinued many of their locks which were well designed and replaced them with locks full of plastic parts. I guess they're trying to compete with Kwikset, which has always made low-quality locks. Oh well. We live in a Home Depot world now, where price is more important than quality. Kind of a shame. I've seen old-style Schlage locks that are still working fine after 40 years. The new crap they're turning out, I've seen 'em break in under a year.
  • I've been led to believe that in the UK, non-compete clauses are worth bugger all for the simple reason that once you've resigned, you no longer have a contract of employment with your company and it therefore has no power over you. That's why companies use gardening leave if they don't want their trade secrets disappearing -- and why the military and security services get so twitchy about ex-employees threatening to write books.

  • Slight clarifications (Score:4, Informative)

    by werdna ( 39029 ) on Wednesday September 18, 2002 @06:49AM (#4280381) Journal
    Reading the comments, I notice that readers are confusing or conflating various issues -- not terribly, but it may be interesting to understand the various bodies of law applicable here:

    1) Trade secret law. This is the body of law that prevents you from using or disclosing certain information disclosed to you, directly or indirectly under certain circumstances amounting to a "confidential relationship." You get nailed either by using or disclosing, or by threatening to do so. Virtually every state has strong TSL. TSL is a species of intellectual property law.

    2) Covenants not to compete. This is the body of law governing the enforceability of contract provisions stating that a person promises not to compete with a business entity. State laws vary widely as to enforceability. Some completely prohibit these provisions. Others enforce them skeptically, depending upon their "reasonability." Still others have detailed rules for reasonability as to time and space limitations. Others limit to whether the covenant is necessary to protect a reasonable commercial interest. CNC is a species of antitrust regulation.

    3) Inevitable Disclosure Rules. This is the DMCA of trade secret law, and this was the subject of the case here. Various jurisdictions (including, alas, Florida) have taken to the view that enforceable non-compete-like protections can be given, without express covenant, to protect a trade secret when a former employee undertakes a job where the disclosure of the secrets is an inevitable consequence of working there. It is a monster, because it invades and disfigures both trade secret AND covenant policies: ID, like trade secrets, potentially last forever and have no territorial bounds. And ID, like covenants, require no proof of bad intent or misappropriation -- even threatened misappropriation. ID, like DMCA, is neither antitrust nor intellectual property -- it is merely naked technology regulation.

    Since covenants and trade secrets, respectively, embody a complex set of balancing issues and policies -- ID, by rejecting those policies, unmoors trade secrets and covenants law from their fundamental justifications, and therefore is as likely to hurt the economy as help it. Like the DMCA, which unmoors copyright law from its fundamental policies, ID risks creation of dangerous rights in gross to a few powerful litigious corporations, with no useful payback to society.

    4) "Right to work" law, so far as I know, is simply a euphemism for the proposition that an employer is free to hire or fire any employee on any given day, and cannot be held to contract (union or otherwise) regarding employment on any other basis. Basically, it makes illegal the old union notion of a closed shop. (In this arena, I am no expert, but folks seem to be misusing the term here.) RTW is a species of employment law, slightly akin to a backwards version of antitrust.

    • 4) "Right to work" law, so far as I know, is simply a euphemism for the proposition that an employer is free to hire or fire any employee on any given day, and cannot be held to contract (union or otherwise) regarding employment on any other basis. Basically, it makes illegal the old union notion of a closed shop. (In this arena, I am no expert, but folks seem to be misusing the term here.) RTW is a species of employment law, slightly akin to a backwards version of antitrust.

      You focus heavily on half of what right-to-work means, and gloss over the other half. Yeah, it would sound pretty bad if only that half existed.

      What you mention, but only in passing, is that right-to-work means no closed union shop. You literally have a right to work; to enter into an employment arrangement without being required to join a union. Yes, that means your employer can hire (and fire) you without going through the union as well. Whoop-de-do. If you like the union tradeoff, join one; if not, don't. You're trying to make right-to-work sound like the tool of eeeevil big business, by leaving off the benefit to the employee.

  • Uh, read the decision before posting.

    He didn't sign a non-competition agreement. This was solely a trade secrets case, and it made no decision regarding whether or not non-competition agreements are themselves binding in California.

    I can guarantee they are in Minnesota; my cousin worked for a automated controls company that designed small control computers that were then OEM'ed by other companies, such as IBM. e quit to go to work for another company, and was sued by his former employer. He fought it to the apellate court, and lost. However:

    o The former employer could only enforce it for one year
    o During that year, they had to pay him his salary

    They did both.

    -- Terry
    • Of course he didn't sign a non-compete; even if he had it wouldn't have made a spit of difference.

      The court didn't have to rule on whether non-competes are legal in California; see Walia v. Aetna [law.com]. The court said that the plantiff was trying to make an after-the-fact non-compete, which would be unenforcable in California.

      • I think you are missing my point; that point was that you are going to be hard put to find a technology industry job where you are not required to sign a non-compete agreement as part of the hiring process.

        This precedent is meaningless to technology workers in California.

        -- Terry
        • I get your point, but it's not meaningless at all. I work in R&D in the biotech industry in California, and deal with trade secrets every day-- my job is to make the damn things. And I didn't sign a non-compete, since my employer doesn't try to spoof people into such things.

          Had they asked, I would have gladly signed it-- because in the state of California, blanket non-compete covenents are not enforcable. It's written into state law and has been upheld numerous times in court. If you're a tech worker in California and your company had you sign a non-compete, they spoofed you, unless it's very narrowly and specifically written and has only a negligible impact on your ability to be employed. You can't contract away that right, and you can't be fired or denied employment for refusing to sign a blanket non-compete

          What this precedent does is prevent companies from using trade secret law to do an end-run around the state ban on non-competes. Which is very important to California tech workers, since it plugs a hole in the ability to go from job to job.

          IANALBMGIIHR (I am not a lawyer but my girlfriend is in human resources). I'd suggest reading Walia v. Aetna [law.com] for an example of how badly a company can get hit if they take action against somebody in california for not signing a non-compete: $54k in compensatory damages, $125k for emotional distress, and $1 million for punitive damages. Ouch

          • Again, I'm going to argue applicability: Walia v. Aetna was about a company which terminated someone who was already an employee for not signing a non-compete agreement.

            What I'm talking about is that, unless you sign the non-compete, you don't get hired as software engineer, and you can't argue this fact, if you enter into the contract willingly.

            I'm well aware of California law as it applies to right to work, and so on; among other things, it requires that your employer inform you that work done on your own time and equipment belong to you, regardless of what an employment agreement says.

            On the other hand, you can contract for your time, and you can contract for pretty much anything, as long as it doesn't try and alienate an inalienable right, and as long as there is consideration exchanged on both sides, it's legal.

            Also, note that the enforcement in my cousin's case was conditionalized on the company's continuing to pay my cousin's salary for the period of time the non-compete was in effect, which was court limited to a period of one year.

            Such a condition on a non-compete agreement is in fact enforcible, since it gets around the section 16600 problem of robbing someone of their livelihood: by paying them their salary during the enforcement period, there is no loss of livelihood resulting from the enforcement. This is what's at issue in section 16600, the interpretation of which, in this case, is contingent on the "mobility/betterment" clause, operating in the absence of payment for the contract period.

            Finally, the "narrow restraint" exception is applicable for an industry segment definition which is small enough; the Walia case was a general restriction, which is not something which normally occurs in, e.g., software engineering non-compete agreements.

            -- Terry

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