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MA Gov. Wants To Ban Non-Competes; Will It Matter? 97

Posted by timothy
from the conscionable-vs.-unconscionable dept.
curtwoodward (2147628) writes "Entrepreneurs in Massachusetts say the state's legal enforcement of non-competition agreements hurts innovation — if you're going to get sued by Big Company X, you're probably not going to leave for a startup in the same industry. But those contracts have powerful supporters, including EMC, which is by far the state's largest tech company. Gov. Deval Patrick is finally picking a side in the debate by introducing his own bill to outlaw non-competes and adopt trade-secrets protections instead. Just one catch: he's a lame duck, and will be out of office in January."
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MA Gov. Wants To Ban Non-Competes; Will It Matter?

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  • by Anonymous Coward

    There's something illegal in California that ought to be in other states as well.

  • by Livius (318358)

    "Just one catch: he's a lame duck, and will be out of office in January."

    Feature, not a bug.

    • by Miseph (979059)

      It's neither. He has announced that he will not run because he doesn't want to serve another term as governor, not because he can't due to term limits.

  • by Anonymous Coward on Thursday April 10, 2014 @05:28PM (#46719715)

    I fully support this. I work for EMC in Massachusetts. I think my non-compete clause as a regular engineer only comes into play if I take a significant ownership position in a competing company, but that pretty much eliminates any possibility of me doing a startup.

    What I really want to see is the elimination of trade secret restrictions on employee salaries. Employees should be free to discuss their salaries. I'm sure they don't want a survey to show that engineers with similar experience have radically different salaries depending on immigration status (wild speculation on my part, but since I can't talk to my H1-B friends, wild speculation is all I have).

    • Re: (Score:3, Informative)

      by LurkNoMore (2681167)
      Coworkers discussing salaries is a federally protected right http://blogs.findlaw.com/free_... [findlaw.com] Of course if you live in an at will work state you can get fired or anything or nothing so proceed at your discretion.
    • by mark-t (151149)
      Why can't you talk to your H1B friends?
    • by Tailhook (98486)

      I fully support this.

      Then you're a fool. The catch is the "adopt trade-secrets protections."

      I know from personal experience that an employer can turn effectively any montage of trivial business practices into a "trade secret" strong enough to crush a competitor that hires a former employee. When I mean crush I mean obliterate; they can sue your new employer or start-up out of existence and walk away with the trademarks and copyrights.

      Unlike a most non-competes and all patents, trade secrets are not limited in time. Under a s

      • by Copid (137416)
        I had a fun exchange with one of our VPs as I was going over the terms of our exit agreement and what it meant for me to protect company IP. His summary was, "You can't use anything you did or learned here in another job," which is pretty weird phrasing.

        Me: But the reason you want me is that I'm an expert in industry X. I've worked here for 10 years, so most of my most current expertise comes from working at this company.
        Him: Nothing you learned here.
        Me: I'm not talking about taking algorithms and
  • Just one catch: he's a lame duck, and will be out of office in January.

    i don't understand why that's a "catch". these dark days of oligarchy, this may be the main way we get any honest political effort.

  • by databeast (19718) on Thursday April 10, 2014 @05:40PM (#46719775) Homepage

    Ex employee here, my lawyer pretty much laughed at the incredible reach of EMC's employment agreement, which effectively states that "If at any time, any point in the future, you publish an idea, which we believe you may have originally thought of while working for us, even though you never used it, wrote it down, or discussed it with anyone during your employment; you agree to immediately turn over all rights to said idea, including buying out the rights from any co-creators, at your own expense".

    • by tompaulco (629533)
      A contract benefits both parties. What benefit does the agreement offer you in exchange for those ideas which they "feel" you came up with while you worked for them?
  • It seems like everyone has to sign these anymore, even me, and I often wonder how many companies bother to attempt enforcement of them for most employees.

    Sure, there are high-profile "key employees" who have limited employment options outside of another company doing the same thing, and within an industry you'd be hard-pressed to hide your employment status. A TV news anchor isn't going to don a fake moustache and wig to read the TV news at a competing TV station and fool anyone.

    But I think of someone like

    • When applying to another company they ask if you are subject to a non-compete agreement. If you answer "yes" you are less likely to be hired.

      They don't have to hire a detective to find out where you work... they just need to check linkedin.

    • I imagine that they only enforce as many as it takes to discourage the moderately discontent from leaving or shopping around. If they have you on theft of some specific trade secret, copyrighted implementation, patent, whatever, the noncompete would just be gravy on top of the raft of actual charges.

      Effectively, the non-compete provides them with something similar to an 'option' in finance. They are under no obligation to sue you into the ground if you leave; but the fact that they could, weighted by the
    • by Shados (741919)

      In MA, precedent(s) was (were?) set for enforcing them for, as you mentioned, key employees. If you're the CTO of a company making, let say, algorithms to design perfect donuts, and you quick to go work for Dunkin Donut's secret research facility in Boston, they would enforce it there. If you're just the tech lead for one of their random development team, in theory the judge will take your side.

  • Now just ban those ridiculous "anything you make while employed by us belongs to us" clauses.
  • by Khashishi (775369) on Thursday April 10, 2014 @06:07PM (#46719989) Journal

    You want me to sign a non-compete? Ok, then sign mine:

    You, the employer, agree not to hire any person to fill my position (or other open positions which have substantially similar responsibilities and skill requirements) when I leave the company.

  • precedent (Score:4, Informative)

    by belmolis (702863) <billposer AT alum DOT mit DOT edu> on Thursday April 10, 2014 @06:35PM (#46720217) Homepage
    We don't have to speculate. California law severely limits [californianoncompete.com] the enforcement of non-competes. It seems to work well there, so it probably will in Massachusetts.
    • by Shados (741919)

      Especially since MA, with the Boston/Cambridge area, is also quickly becoming another tech hub... so having similar rules to one of the states with the biggest tech hubs is probably not that bad.

  • For those who worship the sanctity of contract, please remember one cannot legally contract slavery. And that is what long non-compete clauses amount to -- the inability to market your skills ties you to the employer. Trade secret protection is a very different thing used as a smoke-screen. Unequal barganing power and contracts of adhesion are further aggravations.

  • Name one thing he has done....not all at once there [crickets...]
  • I thought conservative libertarians were supposed to support the "free market". The idea that if your employer is ripping you off then "it's a free country" and you can work elsewhere. Then they turn around and support things like non competes which if measured in "freedom units" would be much more tyrannical than a minimum wage or anti discrimination laws.

    And spare me the "if you don't like it don't sign the contract" line of bs. If people were able to unionize there might be some way we could fight back a

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