[tjic]

> You assume that "freedom to contract" means that both parties enter with equal knowledge and equal bargaining power.

No, it doesn't. I'm Hayek-friendly, so I don't think two entities EVER have the same knowledge.

"Freedom to contract" no more implies equal knowledge than "freedom to drink" implies equal knowledge of brewing, or "freedom to date" implies equal attractiveness.

[cmdrfred]

I have been told by a lawyer friend of mine that for a contact to be valid both parties must have the ability to negotiate it. He said that is why most non-competes are unenforceable in the first place as you don't really have the leverage to negotiate that for most jobs. I took his advice and advantage of his letterhead and told a previous employer to pound sand when they wanted me to not work for a competitor. Worked out fine.

[takeda]

I'm not a lawyer, but from what I understand is it depends where are you. In many states non compete is valid, it can't be enforced in California for example. My current company does have non compete agreement, but they have exceptions for California and in the end it translates to that I supposed to let them know where I will be working next.

[otoburb]

Perhaps to help establish a lack of negotiating leverage, one should always ask for the non-compete clause to be removed in writing and then save the (highly likely) employer pushback for future use.

In general, it's a good rule of thumb to archive written communications (paper or electronic) for any deal, but it's easier said than done when part of the negotiation takes place over the phone.

[cmdrfred]

That might work. If I wanted to put an employee under a non-compete the easiest way seems to offer something in return. Something along the lines of: "...Employee shall not work for any competitor during his employment and 6 months thereafter, as such he will receive a one time payment of 10,000 dollars...". I think the main issue here is employers want this service for free.

[GeneralMayhem]

I'd consider even $10,000 insulting in the Bay Area - that's 1 month salary in return for having control over them for 6 months.

[cmdrfred]

The key is that number is negotiable. If it was low and static that agreement won't be enforceable.

[SilasX]

But taken seriously, that would mean all employment contracts, and therefore employment in general, should be illegal.

Once you get on the "less bargaining power = invalid contract" train, you may not like where it stops.