[Leaplist] [OT/PD] "Apple Exec Hired From IBM Ordered to Stop Work"

[Bryan J. Smith]

Was not sure whether to post this to LEAPBS, or that such
"Professional Development" (PD) concepts are not as "off-topic"
as other things in the Linux Enthusiasts And Professionals
(LEAP).  I've made a few off-topic posts (e.g., hardware) as
of late, but I think this is always an important lesson --
especially in this economy where people are more "willing" than
not when it comes to signing contract terms.

"Apple Exec Hired From IBM Ordered to Stop Work"  
  http://www.pcmag.com/article2/0,2817,2334163,00.asp  

Companies pull Non-Competes on former employees regularly.
Most of the time, the two companies (former and new) work
out a "deal," often a monetary and contractual agreement,
that allows the change of position of the employee when they
are "uniquely qualified/knowledgeable."  But sometimes you
get what we have here with an ex-IBM employee who IBM just
does not want to let go.

Non-Competes _are_ enforceable.  Even if the Common Law in
a state often rules against them, you still have to go to
court.  In some cases, it may go federal (as it did here),
and things really get messy.  Most companies are just trying
to protect their own interests, at your expense.  But, even
if very infrequently, you do run into employers, now former,
who are full of spite when you decide to resign, not matter
how proper and professional you are -- or worse yet -- they
cannot afford to keep staff, but they don't want the same
staff joining a new, growing competitor that will overtake
their business (yeah, it happens quite often!).

Non Disclosure Agreements (NDA) are designed to protect
company's IP, but Non-Compete are full of liability issues.
It's all about what you're willing to put up with, and don't
assume they are _not_ enforceable or won't be pulled on you.
Even if it is not, and you prove so in court, there are
still liabilities -- possibly things your new employer does
not want to deal with when you are mid-litigation.

Some things to put forth when Non-Competes show up in a
potential contract ...

First and foremost, are they fair?  A few are.  "Fair"
contracts are typically a "give-take" trade-off.  You
concede certain non-compete terms in the company's favor
and the company concedes non-compete terms in your favor.
Work with those companies.

Secondly, if not fair, state your demands.  Various people
_love_ to say, "we all sign the same agreement."  That's
typically BS, but when it comes right down to it, merely
state your demands.  Be professional.  Be nice.  Be specific.
When they give you flak, give them real logic where the --
often broad -- Non-Compete agreement terms will affect you.
I've done that to great effect, with the often (light bulb
went on their head), "oh, I never looked at it that way."
Sometimes they will still dismiss them, but tell them that
non-technical lawyers have a way of making headaches for
technical people.  Simply put, if a company doesn't want you
to be employed by another firm, they'll find a way to use a
Non-Compete.  Never seen a HR person argue with that.  ;)

Third, if the company is really putting up the "brick wall,"
do not be afraid to consult a lawyer for advice.  Don't tell
the other party you are -- let your lawyer do that after any
consultation if they feel you should.  But lawyers do exist
for a reason, and a few hundred bucks is often worth their
advice.  He/she may come up with a wording that fits better
than what you could come up with.  Because ...

Fourth, there will be a point where the company will be told
by their own lawyers to end the negotiation and either A)
hire you (without a Non-Compete), or B) drop you from
consideration.  You must either decide to not let it reach
that point (if you really want the job and assume "B" will
happen), or be willing to "keep the door open" in other ways.
One way is to red-line the Non-Compete agreement (or the lines
in it you disagree with / write in alternative terms) on both
copies, initial in the column and draw a line for their initial,
sign and return it.  That puts it "in their court" to sign, or
"puts them on the spot" to sign if you do it in person.

Fifth, know about the logical, "poison pill" clause (which I
learned about from my father).  I've yet to have a company
"bark" at this, and I've regularly impressed potential employers
with it as "oh, I guess that's fair."  It allows the company to
keep their "beloved" Non-Compete clause, but put forth the
additional term.  At the same time, the Company pays you
Salary * Duration if they pull the Non-Compete clause post-
Termination.  In other words, it makes it about "not keeping
you from working" but "paying you not to work."  If the company
feels that strongly about not letting you work for a competitor,
they can pay you to sit on your rear for the duration.  Remember,
it's a Non-Compete, not a Non Disclosure Agreement (NDA), and
they can pay for Non-Competition.  ;)

Just some friendly advice, especially in this job market.


-- 
Bryan J Smith          Professional, Technical Annoyance
b.j.smith at ieee.org    http://www.linkedin.com/in/bjsmith
--------------------------------------------------------
I don't have a "favorite Linux distro."  I use, develop
and support community efforts, often built around Linux.
Technology and solutions are my focus, not dragging in
assumptions, marketing and other concepts which dominate
non-community developed software, which I left long ago.



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