November 12, 2014

First of all, I'm still shocked. When I was a recruiter, we knew judges routinely threw out non-competes for anyone who wasn't a strategic employee -- because a non-compete for a low-level employee was considered coercive and an improper restraint of employment. So I can't believe that so many judges are now actually holding people to these. Given my druthers, I'd turn down a job from any place that made me sign one. But we don't always have a choice, do we?

So I'll share a little tip with you about what I'd do whenever I was given a non-compete. (Because I'm anti-authoritarian that way!) I'd tell the HR person I misplaced the paperwork, and then I would hand it in a day later -- unsigned. No one ever noticed. Via Danny Westneat at the Seattle Times:

To get the $15-an-hour job last spring, Almeida was required to sign a “restriction on competition” clause that said if he leaves, he can’t work for two years for any firm doing similar work in ServiceMaster’s “geographic area” — which the company’s lawyer told me means King, Snohomish, Island, Yakima and Kittitas counties.

ServiceMaster of Seattle, a franchise in a $3.4 billion national corporation, now is trying to force Almeida to forfeit his $18-an-hour job at Superior Cleaning of Woodinville.

The noncompete clause would mean Almeida also couldn’t work in any water- or fire-damage job, janitorial, office cleaning, window washing, floor or carpet cleaning or other job ServiceMaster does.

“ServiceMaster of Seattle hereby demands that you immediately cease all employ with Superior Cleaning,” reads a “notice of violation” letter the company’s law firm wrote to Almeida (who lives with his aunt in Lynnwood).

“Failure to do so will require (ServiceMaster) to initiate a legal action against you to obtain a court order enjoining you from working for one of (ServiceMaster’s) direct competitors.”

When I got the lawyer who wrote that on the phone, my question was admittedly not very nuanced: “Seriously? You’re going after a $15-an-hour worker over a noncompete clause?”

Brian Boice said employment contracts that restrict workers are common and the issue at this pay grade is training. The company spends “a lot of money and effort on training inexperienced workers, and we don’t want to end up training them for our competitors.” He accused Superior of chronic poaching of ServiceMaster’s workers, Almeida included.

Almeida says in his three months at ServiceMaster he did not get any training. He agrees he signed the noncompete clause, but says he thought it would apply to managers who are high enough to have client lists. Or to people who leave to start competing businesses.

“I’m a helper,” he says. “I come to work and get my orders and follow them. I figured I was way too far down the ladder to matter.”

Lately there is no rung too low. The New York Times reported last summer that a camp counselor and a hair stylist lost jobs due to noncompete clauses. Last month news hit that some Jimmy John’s sandwich outlets used noncompete contracts to stop sandwich makers from defecting to any business “selling submarine, hero-type, deli-style, pita and/or wrapped or rolled sandwiches and which is located within three miles of ... any such Jimmy John’s Sandwich Shop.”

It’s hard to conjure what intellectual property or trade secrets are at stake in making the Turkey Tom. Or in wet-vaccing carpets. It’s one thing to make engineers or lawyers sign noncompetes. But cleaners?

“I think this is just taking advantage of blue-collar workers,” said Larry Weinberg, the CEO of Superior Cleaning, who currently employs Almeida. “It’s like we’re going back to the feudal societies of the 12th century, where the vassals are indentured to their corporate lords. We’re still in America, right?”

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