这类协议确实不讨人喜欢。雇主的律师通常非常清楚，挑战竞业禁止条款的前员工往往能够获胜。最近的一个例子：六月下旬的费菲尔德诉Premier Dealer Services公司一案，伊利诺伊上诉法院一致判定，一名新员工在两年内辞去原先的工作之后，放弃了去其他公司工作的权利，但并没有获得充分的补偿。因此，除非雇主向新员工支付大笔签约奖金，或给予员工包括工资与福利在内的其他好处，否则竞业禁止条款将被视为无效。
例如，马萨诸塞州的法律已经禁止雇主要求医生、护士和社会工作者签署该类协议，而且立法机构目前正在考虑一项法案（众议院法案2293）。除了其他变化外，这项法案还将把竞业禁止的期限限制在六个月以内。明尼苏达州的措施（H.F. No. 506）是彻底禁止大多数竞业禁止条款，弗吉尼亚州也有类似的提案（众议院法案1187），旨在禁止一切竞业禁止条款和期限。
Dear Annie: I was recruited away from my old company by a major player in my industry -- I'm a mobile app developer -- and at first I was really excited, because this move would be a step up, and comes with a sizable raise and very attractive perks. But now, I'm a little taken aback. My new employer wants me to sign a non-compete agreement before I start my new job. Among other things, it says I can't work for any other software company for one year if I leave this one.
I've never been asked to sign one of these until now, so I'm not sure what my options are. Can I try to negotiate the terms? For example, can I request that the one-year period be cut down to six months, before I sign? -- No Name Please
Dear NNP: You can certainly request to have the time period shortened (although six months is still an awfully long time to be out of work), but don't be surprised if the answer is "no."
"If you're a real star in your field, and can point to multiple competing job offers, you might have some leverage," says Eric Broutman, an employment attorney at New York City-based law firm Abrams Fensterman who has haggled over many non-competes, on both employers' and employees' sides of the table. "But 99% of the time, people really have no bargaining power so, if they want the job, they just sign. The company holds all the cards here. That's why courts generally don't like these agreements."
Indeed, they don't. As your employer's lawyers are no doubt well aware, ex-employees who challenge non-competes usually win. One recent example: In late June, the Illinois Appellate Court ruled unanimously, in Fifield v. Premier Dealer Services, that a new employee who quit his old job within two years had not yet received adequate compensation for giving up the right to work anywhere he pleased. So, unless an employer has paid a new hire a substantial signing bonus or some other extra chunk of change besides salary and benefits, the non-compete would be considered void.
You don't say which state you live in, but I'm betting it isn't California, where requiring a new hire to sign a non-compete is, for all practical purposes, illegal. That's why, with so many other states trying to jump-start their own high-tech industries, lawmakers all over the country have placed, or are now considering, restrictions on these contracts. "It's hard to compete with California's tech sector if engineers and other skilled employees are not free to move around," notes Broutman. "How are employers going to attract fresh talent? So, in the interest of economic growth, most states now are moving toward discouraging non-compete agreements."
Massachusetts law, for instance, already forbids employers from asking doctors, nurses, and social workers to sign such agreements, and the legislature is now mulling a bill (House Bill 2293) that, among other changes, would limit the time period covered by any non-compete to no more than six months. A Minnesota measure (H.F. No. 506) would completely ban most non-competes, and a similar proposal in Virginia (House Bill 1187) aims to prohibit all non-competes, period.