OA291: Wildcard, Clownhorns! (Non-Compete Clauses & More)
So I hold myself in contempt. If you try to pull me up here to court without attorney. Ask the questions caught Jacka Willie objection. I'm going to alert at Gerke Rogers that under the guard Acker. You didn't kill Thomson, but you did Mr. wells. Gathering. Water board up Paul is out of order. Water. Welcome to opening arguments the podcast, that pairs an inquisitive interviewer with the real life lawyer. This podcast is sponsored by the law offices of p Andrew Torres LLC for entertainment purposes, is not intended as legal advice, does not form attorney client relationship. Don't take legal advice from a podcast. Low and welcomed opening arguments. This is what's check your dot don't change that dial check, I don't know what the proper phrases this a bonus episode coming at you at a weird time and place. Not the norm. But there's just too much. There's just too much. I'm Thomas with that over those Andrew Torres. How're you doing Andrew? I am fantastic. I'm really, really excited. They're bunch of things I wanted to cover and the world blew up on Thursday on a record day. And so rather than lose these down the, the whiteboard memory hole may be forever. I'm excited about getting him out to the people me too. There's just too much. There's, you know, the one way recurring theme is how to deal with how negative the news is all the time. And I think maybe one positive way to deal with it is for more opening arguments. That's really let's face it. I mean that's the best shine on. All this. So there you go. There you go in that spirit. Let's see what are we gonna talk about ROY Moore announcing. Absolutely talking about that for a little bit about Biden wining, and apology for saying that segregationists were nice from Booker who said, maybe they weren't nice there's talking about that. What a great presidential candidate. He is now okay? I'm just going over all the other stuff that blew up today that does not even on your list of stuff, you're gonna talk about, and we're not gonna talk about going to war with Iran, which sure eventually, there will be a lot of segments on that. No, no. It's other stuff, it's stuff we didn't get you. It's cheery stuff like whether or not their detainment centers or concentration camps or something like that. So let's let's get into it. What happy news? Have you for us today? Andrew. Well, this, this first segment is not what I would call happy news in the ongoing discussion of the concentration camps being run by our government to hold miners who are separated from their family at the border. We are learning more and more information about the truly deplorable conditions inside these facilities. So the government is using military bases, including without a trace of irony, former military bases that were used as concentration internment camps in this country to hold Japanese Americans during World War, Two, I mean it, it, it military facilities to hold young children. And that is the subject of. Ongoing litigation and in, in particular the legation. So, so we I covered the president's executive order, separating families at the border in episode one eighty four literally one year ago as of this record as a result that, that order, as we told you was idiot quickly disingenuous in terms of arguing that it was actually designed, you know, more expeditiously to get families back together again. No one believed that at the time and, and in the year sense, then that, that has obviously proven not to be the case. This is this is a disaster. And it is it is horrifying. I mean, I, I remember, you know, under George W Bush. When we learned that the United States was going to operate, a secret offshore prison at Guantanamo Bay for the purpose of torturing suspected terrorists, and that was that was a moment that I would I really felt like. That fundamentally violates the I you know, that, that was, it was shocking to see something that, that I thought in a bipartisan way, you know, really crossed party lines of, hey, you know, we're the US, we don't torture, people that turned out to be the case. Right. You know, one of the things I coach I school debate again, because my son is now involved and, and Costa for very, very long time. And, you know, one of the things that is often a high level questions is the philosophers in space rift, so feel free to, you know, but, but one of the sort of recurring questions in high school debate at, at what we call like the standard right? The question of how do you evaluate the round are questions of our moral obligations, determined, you know, in a utilitarian fashion? Yeah. By adding. Up the benefits subtract cost versus benefit analysis, or are they governed by some kind of deonte logical principle? Right. I don't know where you come out on that. Right. I've heard you. I've heard you make arguments to sort of fall into both camps. Well, that's fair. I think everybody does. I think that's that's really how goes, I think that you can't ultimately everything wants to get it consequences. That's why consequentialist a little better than utilitarian everything. There's no store, you tell about morality moral, choices that doesn't bear out in consequences. In fact, the arguments against utilitarianism and may be consequential ISM are themselves argued informs of consequences, why, which is why I think ultimately, that's what you're going for. But I do think that sometimes there are rules that might shortcut that or might be good rules of thumb in order to bring about consequences. Even if in the if in the short term, it might seem like, you know, it's counterintuitive so it's a complex thing. But the but I think that I definitely lean more towards consequential ISM. But just that are limited knowledge can make difficult to know all the consequences. Are going to be borne out forever, and to how many people and all that so that that's kind of where I stand on. That was this having to do with anything. How did we ever get I? And I'm gonna and I'm going to go. There are a little bit of a rabbit trail when you are kind of taking the position in a debate, right? You have to take sort of the strong, deonte logical position. Right. That part of what you have to do part of what the challenge of that is right. Crafting a rule that, like provoke, you know, that, that seems to meet with the conditions of something like cops categorical imperative that like is always true. No matter what. And we always had to sort of ready to answers, right? And one is totally disingenuous as you will. See, right? Which is you shouldn't violate the rights of an innocent person. Unlike that statement is universally true. But you know, as you point out when you unpack the adjectives in their, the adjectives have ends based consequences built into the adjective, right? The, the other statement that will only think of millions of times every day that we don't hold that to be sacred -ly true above anything. If if the consequences are gonna be rough enough. You know, then we violate that like if you know. We did all the time. I mean like what well for one thing. I mean you could almost say to bring it to a law concept. You could almost say imminent domain is kind of, like, it's there are times when we think the greater good would necessitate that we kinda violate some rights here and there we're going to do our best to compensate you for it. But that's how it goes. I mean, certainly there are times when innocent people's rights are trampled because there's a there's a greater benefit that needs to be enacted. I think that right. I mean that Star Trek. One-to-one interest- interesting, I would I would argue eminent domain. Right. You win when you compensate the person you've compensated them for the rights violation. But, but I don't give them a choice in, you know, you. Yeah. You. I anyway. No. I I I like that. My the whole point. Of this. I think you taking this bonus episode license a little too. I have I'm going to stretch out my legs and podcast legs. I say, whatever I want, that's the Andrew with no, here's what you're going to do. You're you're going to run into a time. Limit. Yeah. My point is my point is that the other example, that was our Goto was, you shouldn't torture bright. Right. That is, as close to an absolute side, constraint that everybody agreed with absentee will. Yeah. All of a sudden it was two thousand and one, and we didn't agree with it anymore because it was made partisan and now you know forty plus percent of when you do polls. Right. Forty plus percent of the country's okay? Well, you know enhanced interrogation that's fine. That's that normalization of something that is an app that I would argue fits into the conditions of absolute side constraints is, is, is truly terrifying. And I don't want to see that happening with respect to the construction of concentration and use of concentration camps in this country for for children. I mean it that's unthinkable. And, and yet we're in the middle of a debate in which the. The, the, the question is the semantics of how children who are being kept in woefully inadequate conditions. The semantics of what we call those. Yeah. So anyway, litigation is currently pending, in the ninth circuit challenging the ice is holding detaining of, of minors. The, the operative legal standard here is actually not a law, but is a settlement of a class action from nineteen ninety seven. It is called the Florus settlement and yeah, it was a class action lawsuit brought by Jenny Lewis, set Florus on on behalf of others. Similarly situated against generating. Oh, gainst a Bill Clinton's era. What was then referred to as I n s the immigration. In Naturalization Service, pre nine eleven version of ice and in nineteen Ninety-seven the litigation had been pending for nine years. So again, how we treat children at the border has been a problem for decades. But, you know, we've, we've reached new lows as a part of that settlement that settlement contains an exhibit, it contains multiple exhibits, but exhibit one is the minimum standards for licensed programs that is places where you can on a an again, florist anticipates a fairy very short turnaround, very temporal a temporary placement of kids nothing like what we have today and it requires that licensed programs shall comply with all applicable child. State welfare. Laws and regulations and all state and local building fire health and safety codes and shall provide a range for the following services for each minor in its care. And, and I'm just gonna go. This is really I'm not I I'm gonna link it in the show notes. It it's extensive okay, the, the things that you must do their fourteen separate paragraphs. Right paragraph. One says, you must provide proper physical care and maintenance, including suitable living accommodations food, appropriate clothing, and personal grooming items and paragraph. Two says you must provide appropriate and routine medical and dental care, family planning services, which we already know is being violated, and emergency healthcare services, including complete medical examination, including screening for infectious disease within forty eight hours of admission, excluding weekends holidays, baba. So that's the operative law at oral argument to. Decide whether what the US government is doing is complying with the Flora's settlement. The Trump administration argued that it was not required to give soap or toothbrushes to children apprehended at the US Mexico border that it is not required to give them a bed that it can require them to sleep on concrete floors. That it does not have to maintain a certain population density, that they can require them to sleep in overcrowded, and, again, these are military facilities so prison cells, and that they do not have to maintain again, you know, it's summer now, but, but the evidence dates back to the to the winter that, that. It. Some of these cases, the blankets. They had were made out of a luminous foil. And the Trump administration said, yeah, we think that is consistent with our obligations under the Flora's settlement. Fortunately, the ninth circuit appeared very, very skeptical of these claims I'm gonna linka a the courthouse news service is a pretty reliable lawyers write it. And it's exactly what it sounds. I mean, it's not, you know, I, I think only lawyers read it except you know now opening arguments listeners, some of the questions asked from the panel. And remember this, a three judge panel at the night circuit US Circuit Judge, Marcia Bersani says you're really going to stand up and tell us that being able to sleep isn't a question of safe, and sanitary conditions and then Circuit Judge William Fletcher got in on the got it on the action. Are you arguing seriously that you do not read the agreement as requiring to do anything, other than what I just described cold all night, long lights on all night, long sleeping on concrete floors? And you've got an aluminum foil blanket. I find it inconceivable that the government would say that, that is safe and sanitary. So the, the government responded that this that the night circuit should reverse the findings at the district at the district court level, because the district court required them to give detainees soap and toothbrushes that, and they said, look, Flores doesn't say we have to give them soap. And this is an I'm going to quote directly from the government's lawyer. When asked him, assume, I was left that way, and not enumerated, by the parties because of the party's couldn't reach agreement on how to numerate it, or it was left to the agencies to determine to, to which the ninth Circuit Judge Fletcher says or it was relatively obvious. At least I'll be enough. So that if you're putting people in a crowded room to sleep on a concrete floor with an aluminum foil blanket on top of them that it doesn't comply with the agreement wasn't perfumed, soap, it was so p-. That's part of safe and sanitary. Are you disagreeing with that? And so this is horrifying. Some of the story has been picked up by by other news sources. And, you know, sometimes we tell you that, that things are alarmist, or this is quoting directly from the oral argument the conditions inside these detention centers are horrific and, and I look forward hopefully, by the time this special episode comes out the ninth circuit will avoid an injunction putting a stop to this practice. Yeah. Couple of questions. I mean first off I this is just outrageous. I absolutely outrageous. I mean on so many levels, you know, it's one thing to be doing what they're doing. But what, what, what are we talking about if we're talking about soap like a few dollars to their budget. Like, is it? It's one of those the cruelty is the point thing I guess, you know. Even if you even if you were hard liner wanting to eliminate as much immigration is possible. I guess, why can't you at least while you're detaining these people and keeping them out of the country or whatever you're doing? You don't have to be abusive toward that leg is just they wanna make sure that it's there so horrible, as people that they wanna make sure nobody even tries to come here is that the goal is that must be it must be the goal. And I invite I don't know that we have too many Trump supporting listeners, but I you know, you and I wanna steal me in the other side of the argument. I can't the I think the steel man version of the argument is, we want to disincentivize illegal border crossings, right? Yeah. I think the casual version of where does that is. I mean that justifies anything apparently. I think the actual reading of the argument is our base wants us to be cruel, and we're going to deliver it to them. Yeah. I can't you know, I wanna know look, we talk a lot about what your obligations is a lawyer are. And we know there's times when you have to defend somebody has to defend horrible, criminals that can thing. Is this the kind of thing where even Mr. lawyer pants Andrew Torres? If you are, you know, in a different life, you were just a gun for hire, whatever, is this, the kind of is there a line, where you need to be like, I'm not going to sit here, and with a straight face argue that not that denying soap and toothbrushes and blankets is, is is in any way. Permissible like what's the line of ethics for lawyers? I mean is God. There's gotta be a bar that's slightly higher than this. Right. Yeah. I wanna I'm gonna tell a slightly related story from when I signed up day one at Covington and Burlington coat factory and. And there are there kind of problems with all this. But, but Covington Burling was was well known at the time for representing among other things the Tobacco Institute, right. Which it's now called like you know, the council on air quality, or whatever we've moved into we're all of these lobbying groups that used to be like, yeah, we're the council for more lead in your water are now. You know, they, they have some, some sort of the heavier water. Yeah. Water. Plus. But it used to be called TI that did the Tobacco Institute and, and, and, and it was kind of pitched to us this way. It was like, hey, we do work for a pro tobacco lobbying and there were at our old offices there were lawyers who did that were who were right chain smokers, right? And the tobacco lobby. And we get it. They do some shady stuff. So nobody has to do any work for TI, if you don't want to now, keep in mind, this was at again, this was said to me, explicitly keep in mind sense. Lots of young associates, refused to do work for TI at peace. A real good way. You know, to get experience, you know, get more substantive work because not everybody wants to do it. I declined to work for TI. I've been very honest, though. I've done you know, I did work for Pakarti and for a group called the century council, which I think used to be called the alcohol, you know, good. And again. Right. That's because people set their moral right? To me the conduct of the alcohol industry. Does not mere the conduct of the tobacco industry. I your your mileage may vary on that. This is just one of those times where I feel like there's a lot of ways in which the norms, we need the norms of norms are great. And it's sad that a lot of norms of, here's one where I would like the justices to just say you are being evil. I'm not even going to listen to this argument. I'm not even going to order an injunction you're going to enjoin yourself like just you need to stop it. You know this is this is evil. You're arguing for something evil, I shouldn't even be here, this should have what are we doing here? I mean, come on. So. So Chuck Burs on actually kind of funny. These, I wasn't gonna quote for this, but judge on actually asked the government's lawyer, have you considered whether you might go back and consider what he really wanna continue this appeal. So which is the lawyer version, that's as close as you get to what I just said as close as you kept to what you just. So. Yeah. As part of the canon of judicial ethics you have you have a requirement to zealously advocate for your client. I, I cannot imagine any, right? Like, if I if you worked, they're good people. Lots of most of DOJ right now. Right. Are are good people their career? Prosecutors trying to do their jobs. You know. And we saw that, right? Like that is. You know, analogously like the, the rights demonizing of Peter Struck and Lisa page, notwithstanding, though, those were again, FBI at different circumstance. But, but those were good career public civil servants still trying to do their jobs. You know, knowing that your boss is now a monster and, and lots of people know you know, nobody. You know. You have options when you're when you're a prosecutor, but lots of people just want to be a prosecutor, you know, so all of that is my way of saying, I cannot imagine having somebody like that, that you would go forward and, and conscripts somebody into making this argument right, that you've got you've got a wanna make this argument and somebody that to go right into every campaign ad for the next thing, you know, this administration is really arguing that it's a bridge too far to give soap and toothbrushes to children that's to enter to accommodate and blankets. Yeah. Blankets. Yep. Yep. These people God. Okay. Anyway, so that's how what's the we we looking for their? So you think there's hopefully, there will be an injunction soon. And I think there will be fully supreme court isn't e that evil that level people totally right. Hopefully, I, I don't know. Okay. Well, we'll see. All right. What's, what's our next wildcard topic? It's the wild card topic. Hopefully this is this is more fun. This is this is a topic. I have wanted to revisit for a very, very long time. We last covered it in episode seventy five, and that is the question of non compete clauses. So we I'm going to read a little bit. This is a question we received at our Email open arguments Email dot com from Aaron McCullough, who says, I can't get into specifics. But let's pose hypothetical that an ice cream parlor had a longtime employee general manager. Let's say leave the company and form her own gelato shop while it's not technically ice cream. There'd be a reasonable expectation that our new July shop would be in direct competition with their former employers. Ice cream parlor, let's say that wing. No competition. Jilava wins hands down L. Yeah. And let's say that when she first started working for previous employer. She signed a non compete agreement that specifies that any employee is not allowed to enter into direct competition with that employer. For two years in a twenty five mile radius of the ice cream parlor with the agreement be legally enforceable. So I love the question and, and let me I make this super super clear because kissing that pathetically may map into reality in some ways, number one, don't take legal advice from podcast. And number two, look, this is super critical in this case, because as, as we're about to complain different states have different rules regarding all they enforce Nanka also regarding Jolanta regarding how the enforce non competes. So, for example, Thomas, the state you live in California has a statute as was then interpreted by the state supreme court. I used to say recently, but I guess it's now about ten years old that they, they won't enforce. Sit at all. With with certain very, very extreme exceptions. And that's really, really interesting. In other words, you can sign a contract in California. Again, don't take advice from spot. Guests that says, you know, you will not work for ex employer. You know, after after your the term of your you will not work for anybody else, or start a business that is in competition, you know, within a twenty mile radius for two years. And in many, many cases you can go out tomorrow and being competition. Right. Even if you've signed an agreement to the contrary, and the reason has to do with Silicon Valley, right? Has to do with the tech industry in California, because the way in which tech startups operate now is they go. Find go getter middle managers at Google at apple whatever and say, hey, how'd you like to come join this new startup and we'll give you tons of. Of equity and you know, maybe you'll become a millionaire someday. Right. And so they hire them away by offering them more money on the promise of way more money. And, and so what makes that super interesting is that now you have a robust body of economic literature suggesting that non competes are bad for business. Right. And that changes the dynamic of the argument. Right. Because for a hundred years in this country, the idea was non competes are good for the business and bad for the individual. Right. And so to the extent that it, it, you could predict kind of on political ground, you'd be like, okay, so liberal states, liberal supreme court, you know, more pro individual supreme court are going to be anti non competes. More pro. Oh, business states are going to be pro non compete, and the California model really kind of throws that on Ted and says, look, there are pro business reasons to be skeptical of non compete agreements and as a result states following the California model, either through legislation and a bunch of states have tried to curb non compete agreements through legislation or through state supreme court, opinions reinterpreting, how non competes are enforced are considering, and weighing in on these kinds of arguments. Right. So you know gonna talk about kind of the standard law in, in, in just a minute. But like there have been opinions in Idaho, Missouri and Florida. Right. Like, you know, pretty red states that are pretty. He skeptical of, of non competes. So keep that in mind in, general the way in which you approach in which forty five states approach whether to enforce a non compete agreement is a balancing test. It is called the legitimate business interest test, or LB. And, and it basically goes like this. I you have to establish that there is a legitimate business purpose in restricting the employees from working, right? And I don't want to be in competition with you is not a legitimate business interest, right? We right again, libertarian paradise we live in a capitalist economy. You know, you make better widgets. What good Ranko out start your on which factory? Now, let's go back to the ice cream example. What, what might be a legitimate business interest? Well, you've learned how to make ice. Cream by working for me. And now you're stealing my proprietary business stuff, and you're using it against me. And so I need as an employer to know that my proprietary stuff is safe. So I want to restrain you from going into competition against me where there might be an inference that you are taking something that we want to incentivize people doing in the first place. Right. And, and they're like, I think the ice cream versus gelato shop probably does pass the sniff test on that. I could see a court go again, the look like you're gonna learn. Maybe gelato is different than ice cream. You probably learn recipes flavor. Combinations you learn how to market. Right. And we want that first ice cream shop to go into business. And so if they wouldn't go into business if everybody who comes along is gonna steal the model and replicate. Right. So to incentivize them to go into business in the first place. We're gonna give. Reema say that they do have a legitimate business interest in something that's, that's kind of step one and let me point out, lots and lots of people again, don't take legal advice from podcast. There was a report that one of the big box stores. I'm going to say target. I don't know if it was target pleased target, if you're listening, don't sue me, but, but one of the big box stores had its baggers and cashiers sign non compete agreements. Right. And say it we're not gonna go I promise. I'm not gonna work valuable bagging technique that can't be replicated and stolen from us yet, and that's garbage. Right. That is obviously, not a legitimate business interest and remember other stores, try to put the bag and top of the stuff. But, you know, the secret foot the stuff in the bag. Don't eat the bag like that. That would not. Pass the straight face test. There is no legitimate business interest in protecting against someone who, you know, isn't learning valuable skills, or client conta, or whatever. Right. And and, and remember the flip side. And again, you don't have to be crazy lefty state to, to, to see this. The flip side is a non compete prevent somebody from being a valuable part of the economy, right? Like it says we are, you know, preventing you from earning your livelihood. So that's a real cost. So once you so the step one is, is there a legitimate business interest, and then step two, if there if there isn't you're out right, the clauses, just gone. But if there is step two, then the court has been there. There's more tests after that. Yeah. Cast a balance all of the respective interests that are at stake here. And typically there are five criteria that a state will use. In figuring out if a non compete clause is reasonable once there's a once it's stab at that, that there is a legitimate business interest, and those criteria are number one the duration of the clause. Number two, the geographical scope of the clause number three, the degree to which the clauses necessary to protect the employer number four the degree to which the clause is a restraint on the employee's right to pursue work and number five, the interference in the public interest. And those are pretty straightforward. Right. The, the two biggest are obviously one into right? So, you know, you work for my eyes cream parlor, and then I say for five years, you can't work for any ice cream parlor anywhere in the United States. Right. That's ridiculous. You know what if I move from, you know, Connecticut, Idaho, like you know, I could steal your business one hundred percent and who cares, right? Like that, that Idaho business is not competing with the neighborhood ice-cream parlor, in, you know, Waterbury, Connecticut. Right. And same thing for duration so so presumptively things like you will see in, in Nunca clauses, you will see a geographical scope, it will be like within a twenty mile radius of businesses headquarters in Waterbury, Connecticut. And and same thing for duration. Right. Excessively long time periods. You know, it's sort of like businesses change in adapting. You know, if you can't deal with it after a certain period than, you know, maybe you're just not a good business person. Different states differ on this. But generally every state, I know of what will hold that. At least six months is a is a reasonable duration for the average non compete clause. Many states will allow up to two years. So sometime somewhere in that six month to two years, probably presumptively good. Anything less than six months is definitely good. Anything over two years is almost certainly bad, right? Almost certainly chip. And, and we'll talk about what no good means in a minute. And then and then the rest of it is, you know, sort of looking at at specific stuff. Right. So, you know, think about let's go back to the target Bagger case. If I say something that might otherwise be a totally fair geographic scope. Right. You can't within twenty miles of any of our stores. Right. And let's say I've got three crab restaurants, right? Or three ice cream parlors. You know, you can't you can't open ice cream parlor within twenty miles of any of our stores. Okay. Well, that's fair. Well, what? If I say, you can't be in competition with target within twenty miles of any target store. They're thousands of target stores in the country that would that. So that's why you have the, the additional criteria of, you know how much does this project employer? How much does it restrict the employee, does it serve the public interest? It's ways of. Looking at the specifics and going, okay. This might otherwise be reasonable. But, you know, in this circumstance, you know it's not reasonable. And then, you know, the public interest is supposed to run a blood Bank. You know, you're right. It's you could imagine situations where we would go. No, we want. We want more that, that's yeah. Big blood taking over of. Right. Right. So now and then, you know, bring the segment to a close but, but just because if so, so you're not gonna be could be found valid could be found invalid to bring kind of the segment to a close. If a non compete is found invalid. There are a essentially three different things that a court can do in response to an invalid provisions in a contract. And this again, this vary state by state. Right. So the first thing that, that they can do is they can just strike out the entire covenant. Not to write this is you that several -bility Claus thing. Always talking about where you're like any part of this can be stricken from the whatever. Yeah. Without. No. That's right. And so this is this is lawyers called this red pencilling right from the days where you actually used a pencil, but the could just be like, yeah. Same contract. Everything's gonna be enforced. But we're just striking this whole thing out alternatively the so that's one option. And it just means you didn't comply with the, the, the balance of interests made it, you know, was it was for too long. You said for, for three years, and within fifty miles, and it's it's that's just too far. So we're going to strike the whole thing out. So the second thing is, is called blue pencilling. And so what the court can do is cross out only the provisions of the con of the clause that render it unenforceable. Right. So now let's let's change our clothes a little bit. And let's say suppose that a, a, a non copy clause in, in a jurisdiction that, you know, otherwise follows the test says you may not take a job with our competitors that, that competes or otherwise within, you know, twenty miles and for two years. Right. And let's say that the court determined that the legitimate business interest that you were working in a in a tech capacity for employer a for the first employer and then you went off to go be in a sales capacity for employer. Be an employer. Be is a competitor of employer. A but you're not gonna use any of the tech stuff that you learned with employer be right? The court might say, look this, this, this covenant, not to compete is too broad because you're saying somebody who worked for you and a tech capacity is now prohibited from working in any capacity with your. Your competitors. Right. It says, whether competing or otherwise. So when we're gonna do is we're going to blue pencil out, weather, and, or otherwise. Right. So now what it's left with is you may not work for a competitor in a competing in competing right in the same job. But we're gonna scratch out the or otherwise. And so the covenant remains in effect. So this guy, you know, if he leaves it still running for, you know, another year and a half. So if he leaves employer be and goes to employers. See and tries to take tech job with another competitor. Right. He still bound by that, but we're not we're going to relieve him of the of the unenforceable obligation in the covenant not to compete. So, in other words, instead of red pencilling the whole covenant and going, guess what your free agent you can work for whoever you want doing whatever you want, because you're implore roll the dice, tried to ask for too much failed? The blue pencil doctrine is a bit more employer-friendly it says if it if it can be. Salvaged than by by crossing out the offending provisions. Then we will salvage it in that way. But it wouldn't solve right? If suppose the problem is you try the non compete says you can't compete within a hundred mile radius for five years. Right. And the and the court says that the geographic scope is too far and the time period is too long. Then you can't save that through blue pencilling either. Right. Because there's no there are no words that you can cross out that will leave that clause in effect unless you get to the third set of states, which allow for what we call equitable reformation of the contract. And that is where the court can say, look, you as an employee were willing to sign onto a contract that says you can't work for five years, and you can't work within fifty miles, that's too, far as a matter of law, that contract is unconscionable and void as a matter of public policy, but when I let you off the hook we're just going to rewrite that down to the maximum standards that are law. Allows, you know, so. Was like early on. I was thinking if you just cross out like the time threshold than it makes a kind of meaningless you'd need to like review. You'd have to, you know, like parameter missing, you know, like you can't within blank time. Like what does that mean? So there is an option to actually revise to it down to an acceptable parameter of any of these things. Yeah. That, that that's right. And that equitable reformation, right? Where you scratch out five years, and you write in six months. Again, under, you know, under the theory that look if you agreed to five year, you definitely agreed to six months is, is the law in about thirty different jurisdictions. So most states that permit non compete clauses will sort of bend over backwards and enforce the contract to the extent of the law, even if it's overly generous on, on the part of the employer, only three states are red pencil doctrines that I know. And weirdly enough. So. Right. So the red pencil doctrine is the, the one that is the most employees favorable. Right. That, that says. Nope, employer. Tried to grab too much. So we're going strike up the whole clause. You wanna take guess what? Those three states are you will never guess but, but I will. Yeah. Hawaii Alabama and the territory of Puerto Rican night. You said I'd never guess is just going wild. I actually like reasonably close. And I mean that alphabet weekly those three jurisdictions are Arkansas. Nebraska and Virginia. And, and again, I think this illustrates kind of the weird state of non compete law. Right. Like those those right? You have a, you have a blue, you know, a newly blue state with, with significant worl- areas. In Virginia you have the utterly unpopulated state of Nebraska, and you have the formerly blue now, deep red. We wanna do non compete. Yeah. Who doesn't wasn't matter turning businesses and depressed bitcoin. Yeah. Either not, we'll be either way on this. It doesn't eat. It doesn't matter. Doesn't matter just either way pick. A and that's the story of Nebraska. So, so I love being able to do this this deep dive. I litigate these kinds of cases. So it is. I just want to end. As as we're answering your question that. I do not think, again there's self interest involved here. I don't think you can reasonably answer a question by Google talked to talk to a lawyer. It shouldn't be overly expensive to get an opinion about the enforceability of your contract. I go through the segment to show you that there so many considerations. Right. It does your state enforce it at all. If it does doesn't apply the I'll be I test if it does, is there any, you know, is there any guidance as to whether there's a legitimate business interests? But does right. What counts as geographic scope? What counts as time live in Nebraska? So are there even people where you are? Exactly. But, but I thought it was pretty fascinating. I know what you're saying is go to legalzoom dot com and then kill yourself. Don't take don't do either of you want to ask you, though you reference that Silicon Valley is something to do this. I was thinking like so much of this is like, a, a place you know, distance based thing like the internet, obviously would throw all that away. You know what? How do you how do you write a clause or enforce a clause or whatever in a in a euro, where so much businesses online in? There's no distance doesn't matter. Yeah. And the answer is non compete law is not remotely caught up to business on the internet. And, and in a way that that fails to protect legitimate business interests over the internet, the an and so what most what I advise my clients to do. And what I think most smart lawyers are doing is figuring out ways to protect those legitimate business interest by calling them stuff, other than blunderbuss kind of broad covenants, not to compete right. So if you identify things as confidential information, right, and you specifically designated every state will enforce being able to get an injunction on nationwide injunction against somebody. That uses your confidential information. Right. If you have customer lists and again, don't try to protect the individual Ella. Events that you're trying to protect rather than trying to like, you know, have this sort of totalitarian control over the, the human that you're saying can't work somewhere else. Exactly. Right. And it is my prediction as a result that within ten years. Most states will disfavor, kind of these broad, non competes. Just that that yeah. I think I think that's where the law is going. And I think that it's going to get there because of the practices that I've described. Right. It's just an and look, I think that's going to be a good thing, right? Like it's going to force employers to say. This is what we care about right? We have a proprietary mechanism for doing X, and we don't want you to steal ex and those losses where to me. Yeah. Seems fair to me, too. So that's where I think we're headed. All right. Well, good old deep down and old timey deep dive. Everybody'll takes us to the days of your back before Trump, when we could just deep dive into these legal issues. I love this. This is I can't wait for president Warren. When we can do this, you know all the time. Yeah, I think I think, with we may need to buy first of all, I've said this to you. I can't remember if I said this on the show, I if, if, if Elizabeth Warren is elected president. I'm going to make an episodes worth of Andrew was right. Like I'll put in the way it's worth it. To me, this is one of those hedging my bets in a way that just, yes, I'm setting myself up for having to do a bunch of work that, you know, I really don't need to do, but it's so worth it to me. We need to make a super cut of Andrew saying, I may have to crowdsource it's a little bit because we have a billion episodes. But like I've just all the time you sell presidency to- prison. Yeah. Future future president, you know, Elizabeth Warren and just make the alternate. Andrew was right episode because. Because it'll be the best genders, right? But also in addition to that, if we get president warn we may need to turn. I mean yodel mountain is forever because who knows how long it's gonna take to, you know, unravel all that and to keep up with who was and wasn't punished for all the stuff. I did all that stuff. And also, you'll mountain can send in for government corruption in general doesn't, you know, doesn't have to be Trump necessarily, but we may need another segment of, like fixing the damage. I don't know what prices right game show, this would be. But, like just all all the ways in which we need to undo or fix or reverse or whatever it is a thing that I'm guaranteeing will be under the radar because there's just too much even keep track of. So, in addition, it won't what I'm saying is, it's not going to be all historical deep dives. Like there's gonna be lots of stuff. We still need to talk about in the here now but different would look like there will be. Bad rule except the state, right? I mean, there's the court will still be horrible. The supreme court will still be horrible. So, you know, we've, we've got job security, don't don't worry about that. But, but yeah, I the I really do look forward to that. The, the days in which this show can be dedicated to, like, here's how we fix stuff. Here's why the law means stuff again. Yeah. You know, optimistic pry y'all to say the ultimate rise of Optimus prime there, he's he was sure he was frozen under the sea for a while or was that the other one either way, we'll say that was the other one that's fine. But but, but dalits Optimus turned to be frozen, and see for for exactly for years. And then and then when a warrant is elected, then Optimus prime can unfreeze and go go be prime again. All right. Let's talk about the last thing. You want to talk about. We're going to get through it all because we've specifically. Yeah. Let's do an Andrew was right. Andrew was wrong on the hatch act off, can you if you know the difference between right on wrong? Maybe maybe not. Yeah. I'm gonna read most of this comment. This is from Adam Kerrigan who says great episode commentary regarding the hatch act. So compliment sandwich coming. I'm always a good way to make sure you, Michelle. He says, I have some common, it's some of the information you put out to the extent to which federal employees can participate in partisan. Elections was potentially misleading. You're absolutely correct. That the interpretation of the hatchback has become considerably looser over the past thirty years, but it doesn't get quite as loose as it sounded like you were describing. True. We can participate in partisan political campaigns. We can be members of partisan political clubs. We can even on our own time. Be officers of those partisan political clubs. However, we cannot run for any form of partisan political office. That's that's true. And that air came about because I was describing the basis for one of the plaintiffs in one of the earlier Haczek suits was. Labor organizers, who wanted to to run for office. And it, it I went back and listen to the episode. Definitely sounds like I say, I didn't mean to it sounds like I said that, that the amendments to the hatchback that got rid of some of the other stuff also got got rid of that. And that's not the case. So I appreciate that clarification. It was misleading. And it's part of I wanted to do this. Back to Adam, nor can we in any way allow our status federal employees to give our perspective or comments any kind of additional standing and this here, he goes through and talks about during uncompensated versus compensated time. I totally agree. This is what I think I would say, so, yeah, this would be like the example. I gave on the episode of, you know, the, the chairman of the joint chiefs of staff appears in his military uniform while giving a briefing and says, if you elect, Elizabeth Warren than North Korea will nuke us, right? Like that. That, that would very plainly be compensated on the job time lending unwarranted credibility to a personal opinion. Otherwise, right. Perfectly protect that general could believe it. That general could be pro Trump in his spare time, but it is being on the clock in compensated time and invoking his status as a federal employees that, that, that triggers, the hatch act violation couple more things that I think really, really important super glad that decided to, to raise this as as clarification. There's not necessarily things that I was right or wrong about, but, you know, worth going into more depth the hatch act only applies to executive branch employees. Right. So, for example, there is a, a Maryland, delegate from C so county named Kevin Hornberger. He is elected to public office. He says, Republican stuff he works for the library of congress library of congress is not an executive branch agency. So check doesn't apply to him. We, we mentioned this at the start of the segment, but it is worth pointing that out that you work for let's say the clerk of courts, right? Like there are lots of government employees who are not executive branch employees. Most of them are, but, but there are some that, that are not and the hatch act does not apply to them. It does not apply to congressional staffers, for example. So, so that is that is really good other points that Adam mix that I think are, are really useful. The, you know, verifies our. Pessimism that this is really going very far. He says, if the president chooses, not to follow the office of special counsel's recommendation, the next step would be for a to make a choice. It's up to them to decide whether or not to formerly bring a charge before the, the board. The must be then oppress the issue, it's over Kellyanne Conway stays doesn't even get a citation. But if the chooses to pursue a charge then the functions as the prosecutor before the board, if the board, here's the case, it would have the authority to issue a decision on the merits, the board would have the thority to direct the president to terminate. But the MS is an executive branch agency. The president is the head of the executive branch and it's unlikely that, that he would act in accordance with any board decision. He didn't like factors to consider OS's, currently run by Trump appointed as as Adam points out. I did point that out episode. The MSPB has an ad sufficient members to constitute a qu-. Him in forever. So they can't make any rulings. There's a huge backlog of cases, that would likely need to be heard before Conway's case could even be put on the docket, and the most likely outcome here, folks, you press the issue calmly case wouldn't see the light of day until sometime in late twenty twenty or early twenty twenty one after the election. So everybody wins again. Everybody sternly worded letters, sternly worded letters. That's what we have in this day and age. Yep. And, and that's an that's where out of comes out. He says most likely course events Conway stays every other federal employee on his staff learns that they can get away with these kinds of violation. They ramp up as the election approaches once again, we know this is legal, but there's nothing you can do about it becomes the status quo. I kind of find a take all the time to like no Andrew precisely the ways. The hatch act works is this and also it's none of this is enforced and it doesn't matter in anyway. I think it's kinda funny. I. I get it. I welcome the information. It's good to know what should be happening, but isn't, I guess, well, kind funny, it'd be like, nitpicking description of a thing that doesn't matter because it doesn't well, but here's here's why it, it, it does matter. Get ready. Everybody forever doesn't matter for Kellyanne Conway. No, you're right. When we have Democrats in there, we should make sure that we follow the rules and in and as Adam points out. This is an area where I said, kind of cavalierly hatchback prosecutions are rare and he says, yeah, prosecutions are rare but that doesn't tell the whole story you have to consider why there where it's not common for SP to hear the cases because supervisors generally listen, when the C tells after fire it employees for Chac violation, prosecution only comes into play when a supervisor refuses to do with the is recommended or when an employee tries to craft an appeal of a hatchback violation in the latter case SP doesn't have to take the appeal if the argument is strong, usually it just shuts down the appeal in the early stages, almost nobody fights turbans. He says, I love this phrase. I'm going to start using this the squeeze isn't worth that use. Takes years to argue case before the board most folks just find another job and Chuck it up to experience odds. Are they hated working for the government anyway? So Adam includes, I don't know that any of this constitutes. Andrew was wrong, but considering and briefly explaining when I'm offered may may help people better understand. I, I totally agree. You've you put the other slice of bread on the compliment sandwich. So I will medicine on what's in between, but no, I thought I was super useful, and I really appreciate it, and I'm glad we get a chance to me cheese. But I do also pre sheet. It's good to be armed with the facts hypothetical, though. They may be sometimes. All right. Well, we've done it. We've done awhile card episode. We got to catch up on some stuff. We've got to get to some stuff that was both is depressing as it was newsworthy in the ninth. Circuit thing, I, I'm horrified by that. We need all stay outrage permanently really until this is resolved, which will be maybe never, so permanently we need to do our best to keep our eye on all these things and keep it in perspective. This really is that bad, you know. Administration. Is that bad? So let's, let's keep at it. I know I can't be negative. But because there's so much to be negative about some and sorry I will continue to be out. There is so much more, you know, worth the word over an hour on the bonus and I could go another hour on bad stuff about Justin Walker. There's a lot of bad. That's right. And, and, and, and let's stay vigilant on that. Don't, don't forget, you know, hashtag opposed. Justin walkers. So. All right. Well, thank you so much for listening. Thanks to our patrons for making this happen. This they are the reason the show happen. So if you'd like to join patriot dot com slash law. They of course, got access to this episode early quite early. So that's another reason to join, but thanks so much patriots. Thanks listeners and share this out. If you can't be a patron, we understand that lots of people can't make sure you share the show. That's the next best thing to do to support us. So thank. You so much. We'll see you on rapid response Friday. This has been opening arguments with Andrew and Thomas, if you love the show and want to support trips oats, please visit our patriarch page at patriot dot com slash off. If you can't support a Spanish -ly it'd be a big help. If you leave us a five star review on itunes, Stitcher, or whatever, podcasts delivery, vehicle, use, and be sure to tell all your friends about us for questions suggestions and complaints. Email us at open arguments at gmaiLcom the show notes and links are on our website at WWW dot ahrq dot com. Be sure to like our page on Facebook and post on Twitter at open arts until next. This podcast is production of opening arguments media LLC all rights reserved. Opening arguments is produced with the assistance of our editor, Brian, c-can higgin, our production, assistant. Ashley Smith and our researcher, Deborah Smith special thanks to Theresa Gomez in the entire OA Wicky team. 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