[FoRK] Google vs. MSFT: Non-Competes

J. Andrew Rogers andrew
Wed Jul 20 10:50:21 PDT 2005

Mike Masnick wrote:
> Non-competes are already illegal in the Valley (and,
> actually, in all of California).
> They're legal in most other places, though... and since
> this argument is about China (and filed in Washington
> state) it has little to do with the state of non-competes
> in the Valley.

It is not really a matter of legality, but whether or not the courts
will void particular contractual terms in practice.  In California, the
judicial system is strongly inclined by precedent to void strict
non-compete clauses in employee contracts -- that is the "unenforceable"
part -- but there is no guarantee that the outcome will be so favorable
to the employee in any specific case.  It is my understanding that it is
quite possible to make the non-compete clause stick in California if the
terms are structured correctly.

In a way, I think it can be argued that the California situation is a
Bad Thing, in that it makes contract law very squishy in the minds of
people and tends to lead them to sign things they really should not
agree to in principle.  In many other States, the courts will enforce
employment contracts as written including strict non-competes, and only
void egregiously broad clauses that would be illegal to agree to (e.g.
something that could be construed to obligate the person to slavery and

All things being equal, I'd much prefer contracts to mean exactly what
they state and not depend on a judge to re-interpret them in the
employee's favor.  It leads to less legal pollution and fewer court
battles when ambiguity is removed from contract law, and everyone knows
exactly where they stand rather than banking on future good fortune to
change the contract.  I personally do heavily edit absurd non-compete
clauses even in California and have never had any problems because I did
so.  People really should take personal responsibility for the contracts
they sign.

j. andrew rogers

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