Re: LAW: (long) enforceability of noncompete agreements

[John Gough <gough -at- AUSTIN -dot- ASC -dot- SLB -dot- COM>]

Elna, you might want to explain to the people on the list
that you are a principle in an agency ( http://www.lts.com )

That would orient them to the source your opinions. I don't know how to 
explain your unwillingness to identify yourself or defend
your position in a substantial way. If the only reason you
defend it is because corporations lean on you to include
the clauses in your employment agreements, I am sympathetic
to the business problem but still resolved that the clauses are 
incorrectly applied to technical writers. 

As I pointed out in private mail to Elna, California law
makes it hard to enforce noncompete agreements (California
Code 16600). The following quote is from a Web ad by a law
firm wanting to cultivate corporate business:

>"Imagine how the Dallas Cowboys would have felt if, just before the Super
Bowl, Troy Aikman jumped ship, play-book in hand, and went to play for
>the Pittsburgh Steelers. Many companies face a similar situation when a
key employee, who possesses corporate trade secrets, defects to the
>competition. California companies are particularly vulnerable to this
scenario due to the **** statutory prohibition against noncompete contracts
that limit an
>employee?s right to accept certain types of jobs after leaving a company.
See Bus. & Prof. Code §16600." ****
>
>(*'s mine) http://www.luce.com/publicat/4tr3_3.html
>

Elna Tymes wrote:
>Good question.  The "law," as I understand it, is being created as a
>body of case work, one of the most recent ones being the successful suit
>against the president of AVANT! and several of that company's
>employees.  

There are several cases that concern *key personnel* in corporations,
and not all of them are prosecuted successfully.  My point is that
tech writers are generally not the core of a business' ability to
stay afloat.  Subjecting them to noncompete agreements is restraint
of trade because the company is highly unlikely to sustain real 
damages from the writer working for a competitor.  The confidentiality
agreement, which I support, should protect employers' interests. 

The effect of noncompete agreements is to place one's current
employer at an unfair advantage--it's a variation on "if you quit,
you'll never work in this town again."  Most people can't afford
not to work for 24 months. Right now times are flush, so people
aren't sensitive to the problem.  Let a recession hit and they
might be more sensitive to the fact that you want to keep them
from working. 

A popular phrase in recent years has been "get government off our backs."
I don't want corporations on my back or my profession's. 

>Look - (and I can speak from personal experience on this one) - a lot of
>lower court cases like this are won simply because the defendant
>couldn't afford to pay a lawyer the amount it would take to defend
>himself.  Lawyers don't generally take cases on the basis of what's
>right and what's wrong, despite the premise of some TV shows.  They
>generally take cases based on (1) whether the client can pay, and (2)
>whether they feel the case can be won.  Sometimes (2) isn't a factor at
>all. How many salaried technical writers do you know who can afford
>$250,000 legal fees from out-of-pocket earnings?

So your point is that poor people like technical writers should 
accept anything that they're not big enough to fight?  That's
a nice ultra-capitalist point of view, and one reason why we
have a government to adjudicate conflicts between businesses
and individuals.  

Lawsuits can be pressed for less than a 
quarter mil, btw--though I would be loath to spend the 10K
to 25K required unless someone had hurt me badly. Even that
is returned if you win. 

<baiting and ridicule cheerfully snipped>
 
Thanks to all of the techwr-lers who have responded to me privately. 

John

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