As I understand it, non-competes are very hard to enforce and are more of an intimidation tactic than anything else. You cannot be prevented from earning a living the only way you know how given the demand for your skills. If you're bound by a non-compete and the only (or the best) job available is with the competition, you shouldn't be afraid to take it, and the courts will side with you if someone goes after you (well, unless you're in Hawaii according to the article!).
An agreement is not enforceable if it is unreasonable, and denying someone the opportunity to make a living is pretty much unreasonable out of the box. Of course it's not true in every case, but it is mostly true for "techie jobs".
(I am not a laywer, the above is not legal advice).
They're hard to enforce, but I can tell you from experience (current) that it doesn't matter - their existence and enforceability in ANY way in a given state is harmful in a big way. California has basically done the right thing and decided to ignore them, but my home state only has rendered them ALMOST entirely unenforceable. That almost leaves a lot of room for the casual observer to judge - and it stings.
There are still edge cases in California too, or at least one: if you leave partnership (not employment) with an LLC registered in _another_ state, non-competes still apply. I know this from experience with H1, the Holacracy-making company. I don't blame them for having a non-compete, and I wasn't interested in founding a competitor or working for one of their clients, but it was weird to think those actions could make me liable.
I've known any number of people in Massachusetts who have made the entirely rational decision to just hit the beach for a year rather than trying to deal with the potential consequences of a non-compete. And as someone who worked for a small company in an other state, we basically wouldn't even try to deal with a potential hire who might be covered by a non-compete--enforceable or not.
I can't speak for Massachussetts, but in Washington state non-competes have to be narrowly tailored resulting in them being relatively hard to enforce.
Looks like there are some new moves afoot to try once more to restrict or ban non-competes. Sadly there are many older, established tech companies in MA [with deep lobbying pockets] that oppose this.
1 - I lost a job in nyc when counsel at the new company decided my old company was too close because they both did internet advertising
2 - intimidation works quite well up to your ability to front giant legal expenses. While stuff may or may not be unreasonable, most of us aren't in a position to front tens of thousands of dollars that you probably won't get back.
Yet if you hire someone under a non compete in many states the court battle will cost you 50-100k. Until they're blatantly not legal they're still a huge pain.
It's hard to be certain of the enforceability of terms unless you've already got the judge in your pocket, and it's easy to put "to the extent allowable by law" everywhere.
And is very dependent on jurisdiction and changes over time in any given jurisdiction.
Illinois for instance went from "non-compete's were basically not worth the paper they were printed on" to "hmm, might need a judgement to figure it out, is it worth it?"
Non-competes aren't there to be enforced, but to make the person stinky to future employers. A decent company will cover legal expenses and, in the extreme outlier case, judgments-- and an indecent one will fire you, but you probably won't get sued in either case. The effect of a non-compete on a star hire is relatively small, but if you're an entry-level engineer, the difference between $85,000 per year and $85,000 per year plus theoretically unbounded legal risk is huge.
Non-competes, non-solicits, and (except in a severance) non-disparagement clauses are shitty practices that deserve to die in a taint fire.
Except that the junior engineer's old company won't sue because he is just a junior engineer...
True in practice, but there is risk.
Plus, it's just a shitty conversation to be compelled to have when you're trying to convince someone to hire you. ("One last thing, I'm under this non-compete, so can I get a written agreement to cover legal costs?") An executive can probably get that protection. For a junior, that's a deal breaker. And typically, the vindictive or paranoid firm won't actually sue your next company, they'll just ask your new firm to fire you... and often (for low-level people like software engineers) they will.
Tech is diverse enough and "competition" generally amorphously-defined enough that junior engineers rarely get strung up on non-competes. It's more of an issue in finance.
The only time it happens in tech is when there's a deliberate attempt to destroy someone's reputation, like what a few people (none especially important) from Google tried to do after I left that place.
I think the winning strategy in this case is to conceal from your prospective employer that you're under a non-compete and hope for the best.
If your former company is not vindictive enough to send a copy of the form to your new employer, you win. If they are vindictive enough - you lose, but you would have lost if you told your prospective employer that you were bound by a non-compete anyway.
The mere fact that skilled workers need to contemplate such deceptive tactics as part of their everyday "pursuit of happiness" so that a business can enjoy some risk mitigation I think underlines that Hawaii is spot on in making non-competes outright illegal.
>>The only time it happens in tech is when there's a deliberate attempt to destroy someone's reputation, like what a few people (none especially important) from Google tried to do after I left that place.
That sucks, sorry. I agree it is an unnecessary complication for engineers which may or may not give companies any real protection.
An agreement is not enforceable if it is unreasonable, and denying someone the opportunity to make a living is pretty much unreasonable out of the box. Of course it's not true in every case, but it is mostly true for "techie jobs".
(I am not a laywer, the above is not legal advice).