Said FTC Chair Lina Khan, quoted in "U.S. bans noncompete agreements for nearly all jobs" (NPR).
The vote was 3 to 2 along party lines.... [The U.S. Chamber of Commerce] has vigorously opposed the ban, saying that noncompetes are vital to companies, by allowing them to better guard trade secrets, and employees, by giving employers greater incentive to invest in workforce training and development.
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78 comments:
"One person noted when an employer merged with an organization whose religious principles conflicted with their own, a noncompete kept the worker locked in place and unable to freely switch to a job that didn't conflict with their religious practices."
Hahahaha.
The left does not believe in religious freedom but cites it freely when it might support their arguments.
Unintended consequences loom.
The 13th Amendment banned indentured servitude.
"U.S. bans noncompete agreements for nearly all jobs"
Did Congress pass a law or something?
Uncompensated non-competes are tantamount to theft.
I can understand noncompetes for some positions where the employee has knowledge about trade secrets. Having said that, a noncompete agreement should be accompanied by a hefty salary or bonus if the employee's knowledge is that great.
It's when I read about burger flippers or cashiers being required to sign an agreement that I get upset.
Does FTC have the legal authority to do this?
Shouldn't it require a law from congress?
I tend to agree about most non-competes and prospectiva employees generally should not sign them.
But they are voluntary and don't need govt prohibition.
This is the kind of thing jnions exist for
John Henry
The federal agencies do so much legislating. It has really gotten out of control.
"It's when I read about burger flippers or cashiers being required to sign an agreement that I get upset."
But do you, in fact, read about menial jobs subject to non-compete agreements? I don't recall reading about this. Also, if the non-compete agreement is part of the job offer, then by definition, compensation is being paid.
If a trade secret is valuable enough, one should patent it. And if it can't be patented, then it probably isn't really a secret.
I have never liked non-competes, and I have litigated both sides of them. Some states have banned or restricted them legislatively, and I support that. But the FTC? Where does it derive the power to decree this on a nationwide basis? There has been no Congressional action. Somewhere, sometime, we have to pull back on these arrogations of power that we are continually seeing from executive and administrative actions.
"...a noncompete kept the worker locked in place and unable to freely switch to a job that didn't conflict with their religious practices."
I call bullshit on that! If you're so specialized that you can't find related work in your chosen field, then the problem is you.
...noncompetes are vital to companies...by giving employers greater incentive to invest in workforce training and development.
I call bullshit on that as well.
I don't know how I feel about this. I don't like that it is the Federal Government doing it. It is my understanding that Non-compete agreements were already limited by most states on their own. And while it wasn't a total ban it did limit how far these agreements could go in length of time, broadness of geographic area covered, and scope particular industry covered. The more significantly a particular factor was controlled, as far as limiting a potential job seeker, the more the other factors would be reigned in as far as what were acceptable limits. I also think Non-compete agreements generally had to be separately negotiated from a general employment agreement. I'm assuming this will make turnover and salaries a lot higher in AI right now. It will be like the Wild West out there.
"The Federal Trade Commission narrowly voted Tuesday to ban nearly all noncompetes, employment agreements that typically prevent workers from joining competing businesses or launching ones of their own. "
Yeah, doesn't sound like a law if Congress didn't pass it, so what is a 'ban', precisely? Is it now entered in the Federal Code?
I wonder if it's a fad. I know of a business that is failing, trying to re-open at some future, un-specified date under a new name, that is trying to get its present workers to sign one - even though all they're offering is a chance to re-apply for their same job if they re-open. And in the meantime, they'd rather their workers didn't go anywhere else. I was, needless to say, a little surprised that this would be considered a norm, or that it could be enforceable.
If the Chamber of Commerce is supporting it and filing to block it, well..... That would tend to immediately prejudice me against it. I think they have entirely to much influence on the Federal Government, poorly directed to gain every advantage for the corporations, and often at a considerable cost to the workers.
Ha. A deregulation only the Chamber of Commerce could hate. Oh, and ALEC. Did anyone ask Rand Paul to comment?
Of course companies have rights to intellectual and technological property. There are other ways to defend these things.
The FTC will lose in court. They are overstepping. Congress will never pass it: have you ever seen the non-disclosure and non-compete contracts for political and campaign employees?
Sometimes noncompete clauses are used to discourage job changes and intimidate people who have no inside knowledge or trade secrets. It's an employer-friendly "gentleman's agreement" rule to guard against poaching and salary increases. These are often unfair, but enforcing them requires paying for lawyers. In most cases enforcement results in a net loss, so this tends to be ignored.
Sometimes a key executive might destroy a company by moving to a competitor. It always depends on the situation.
There should be balance here -- see @mongo.
There's much rejoicing in the medical field over this. Many physicians feel stuck in corporate medicine/employed positions they hate because of non-competes. I imagine there are other professions that feel the same way - like lawyers and accountants. I can understand why there are non-competes for these types of fields, since you could use your employed position to build up a patient/client base then leave with your patient/clients, but I am less sympathetic with corporate powers, like hospital networks using them, than I am small independent groups whose bottom lines would be hurt by someone leaving with patients/clients. I had no idea these were applied to minimum wage positions. That is just an obscene use of power.
It used to be that noncompetes were restricted to the owners of a business that was bought by another firm, lest they turn around and use the buyer’s money to build a new company with a second generation product that sends the value of their old company down towards zero. I guess that’s changed.
However, having written that- this is an issue for Congress to decide, not the FTC. When I was working in the pharmaceutical business, one of the clauses of my contract was that should I work for a competitor in the future, I was prohibited from disclosing trade secrets learned on the job for which I was signing the contract. That is still legal with regards to the new FTC regulation- it was not a non-compete- it was a non-disclosure agreement. I signed it without any hesitation and consider it a proper thing for which my employer to ask and for me to agree.
I looked closely at non-competes and the economic arguments for and against them when I was teaching business law. Economic theory suggests that non- competes are economically efficient, since they are the agreement of two parties each seeking its own best interests. But the economic evidence doesn’t always support that theory. In particular, I look at the differential outcomes of Route 128 in Massachusetts versus Silicon Valley in California. In the 1960s and 70s, Route 128 was the dominant high tech region in the US. It was overtaken by Silicon Valley, which today is still dominant. While there are numerous factors contributing to this development, a prominent one is that Massachusetts enforces non-competes and California does not. California, like Massachusetts and every other state, will enforce a non-disclosure agreement to protect an employer’s IP. But, you can quit Google and go across the street and compete, so long as you don’t steal their trade secrets or other IP. You can’t do that in Massachusetts.
A different issue is that some employers have started using non-competes for low level, fungible employees, like janitors or burger flippers. In my humble opinion, such non-competes are unreasonable and unenforceable under the traditional law of non-competes since they don’t protect any legitimate interest of the employer.
I guess I come out in favor of the substance of the FTC rule, but opposed to the rule since I think it’s way beyond the FTC’s power and jurisdiction.
I had a customer that built up a business that was bought by a national company. they worked their non-compete & started another business in the same field, built that one, and sold it to another national company. He didn't have to work after that. He's a part time consultant now.
That's a case FOR non-competes. It's difficult to enforce one that keeps an employee from working in his field. It can be done, but lawyers get all the money.
I have been subject to non-competes for nearly 20 years of my life. I have also managed teams that sign a non-compete to work with me.
Generally, I took these agreements for granted as the cost of doing business. In reality, however, they are difficult to enforce and a lousy reason for workers to stay if they are unhappy.
We have entered a new epoch in capitalism with abundance of resources. Truly, people deserve to work in a place where they can create value and the organization creates value for them.
If an organization relies on non-competes to shackle workers to the company, then those companies should turn their attention to creating value for their employees instead.
Bear in mind I am differentiating non-disclosure from non-compete agreements. Though I would toss out non-solicitation agreements along with the latter.
Non-compete contracts should remain viable only until market conditions allow competitors to carry out independent development. Once that happens, there is no need to pay hush money to capture employees from other enterprises.
"There's much rejoicing in the medical field over this. Many physicians feel stuck in corporate medicine/employed positions they hate because of non-competes."
My internist was stuck in huge hospital corp with a non-compete. They required you to refer their doctors & pushed specific drugs. Cut salary of pediatricians by 1/2. Also, the CEO was making $4.5m.
They sued & won, starting their own group, taking 70% of the docs with them. My doc was the instigator. He's a stud
The fact that this board believes it has this power is the problem.
@Sydney: Lawyers don’t worry about non-competes since they have interpreted the rules of legal ethics to prohibit non-competes for lawyers. The theory is that non-competes for lawyers would interfere with the client’s right to pick his own lawyer. The result is that lawyers can leave a firm today and tomorrow set up a new firm to compete against the old one, subject to some fiduciary duty limitations (e.g., not calling clients of the old firm to solicit their business until after you’ve told the old firm you are leaving).
When Lina Khan opens its mouth, that means the lie is ready to come out now.
I don't know how you can ban non-competes.
It will create the mess we have today with college transfer portal.
Yancy Ward said: "If a trade secret is valuable enough, one should patent it. And if it can't be patented, then it probably isn't really a secret."
Obviously, you don't practice intellectual property law. There are myriad instances in which a trade secret isn't patentable, for a variety of reasons, but the trade secret is just as valuable as if it were patentable. I'd wager the vast majority of intellectual property developed in Silicon Valley is non-patentable (or impractical to patent). Non-competes help protect this category of intellectual property, especially where job-hopping to a competitor is common.
Non competes are almost exclusively executed to prevent the employee, changing companies and bringing their clients with them. If a journeyman electrician is asked to sign one, I would run the opposite direction. It signals a company that can't hold onto employees. So go find a company that is not requiring a non-compete.
Again, almost exclusively, there are geographic and time constraints. If you service an entire state, you might be barred from working in that State, for a different enterprise. A DR, I can see a limitation to the reach of that hospital, clinic. These highly skilled, highly paid positions have lots of negotiating leverage to get out of non Competes
I spoke to one lawyer that admitted, he as never failed in getting a person released from an NDA, so I fail to see why the govt is sticking their nose in the mix
This is regulatory over-reach, but non-competes have been abused, especially at the franchise level. Worst abuse was when the tech companies started entering into mutual non-poaching clauses (these were struck down) which prevented employees from moving to a different company.
I would not have minded if Congress had pased this and limited non-competes to those making say over $200k, with an annual inflation adjustment.
“Of course companies have rights to intellectual and technological property. There are other ways to defend these things.”
Yes, they do and yes, there are. I wouldn’t rule assassination out.
Gee, now the companies will have to keep employees from leaving for greener pastures by, OMG, offering competitive greener pastures at their own company!
If you think noncompetes are horrible for workers, and I agree they are, H-1 visas for foreigners are essentially indentured servitude by employers.
I'm under a non-compete that is soon to expire, and I'm in support of doing away with them, but such things should be done by express legislative action of our elected representatives in Congress after a transparent debate of its merits. It is a mistake to allow faceless bureaucrats with lifetime sinecures to promulgate such sweeping regulations in the middle of the night with no discussion. We are not Byzantium, where court eunuchs ruled in the name of puppet emperors. Or are we?
And this is setting aside the fact that our founding fathers would have been aghast that ANY organ of the Federal government would dare to claim the power to set the terms of private contracts in this manner, especially if such agreements were confined to a single state. The states should take the lead, and if the abolition of non-competes were a good idea, it ought to be plainly apparent from a thorough trial in one or more of the states. But that ship has sailed, until the happy day that Wickard v. Filburn is overthrown.
I don't think the FTC has the authority - as an admininstrative agency - to do this.
It sounds like a couple people in the FTC have tried to invent a job they think they should have, even if Congress hasn't told them to do it. Perhaps the workforce should be trimmed if they have to do make-work things like this.
I've signed noncompetes and an NDA. Quite normal in the City if you're moving on.
How can Govt interfere in normal market practices? I don't believe this following story
"One person noted when an employer merged with an organization whose religious principles conflicted with their own, a noncompete kept the worker locked in place and unable to freely switch to a job that didn't conflict with their religious practices."
I've signed noncompetes and an NDA. Quite normal in the City if you're moving on.
How can Govt interfere in normal market practices? I don't believe this following story
"One person noted when an employer merged with an organization whose religious principles conflicted with their own, a noncompete kept the worker locked in place and unable to freely switch to a job that didn't conflict with their religious practices."
PS Normally non competes are time limited. You usually get paid - gardening leave in summer is great.
Nothing says there is no deep state than an agency declaring a common practice verboten.
The lady that cut my hair left the salon and the owner threatened her with enforcement of a non-compete that had a 15 mile radius within which she was prohibited from cutting hair. She took a job 5 miles away and to get him to drop his claim, she gave up her last two paychecks. That's how employers of lower wage service workers use these noncompetes.
Lawyers draft them, enforce them, and defend them, but are not subject to them. Legal ethics rules prohibit anyone from enforcing them against lawyers. What a system! That is why lawyers leaving forms gets so nasty because there is a tug-o-war over clients.
I'm generally against noncompetes but counseled employers who wanted to implement them to pay legitimate consideration (at least $500) for having current employees sign them.
Must be said that noncompetes and non-disclosure agreements are different from non-solicits. Non-solicits prohibit recruiting fellow employees and poaching current employer clients (but see lawyers, above). These are much more defensible and, to my knowledge, enforceable everywhere if otherwise reasonable in terms of scope and duration. Also enforceable is defense of trade secrets and confidential information. Nobody has the right to take such employer assets for personal gain -- signed non-disclsure agreement or not. The FTC action is only about removing restrictions for many occupations from working for someone else in that same industry. Non-solicits and non-disclosure agreements are still valid.
Freedom of Contract, baby!
Oh well it was worth a shot.
Most non-competes are unenforceable in my state, the drawback is that you (may) have to contest it, and that can be costly.
And doing it this way is a terrible way to address the issue. Administrative fiat can change back as soon as the other side regains the reins. Then suddenly, they are legal again everywhere that hasn't banned them.
Blogger Earnest Prole said...
The 13th Amendment banned indentured servitude.
How is it servitude if you agreed to it?
Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
Section 2. Congress shall have power to enforce this article by appropriate legislation.
Nothing there about indentured (as you put it) or contractual servitude. Only "involuntary servitude" which is the opposite of signing a contract.
John Henry
Blogger Rich said...
Uncompensated non-competes are tantamount to theft.
That's Rich(tm)
How is it uncompensated? They are getting the paycheck, are they not? Is that not compensation?
Next you will be telling us that requiring someone to come to work at 8AM is "tantamount to theft"
John Henry
In my career in finance IT I had a number of NCs. They weren't an attempt to stop devs from taking another job. You can dev another product. They were to stop the dev from porting database and system designs to another employer. I agree with that. I was paid to develop a system specific to them, not develop a cut and paste portfolio for my next job (who just happens to be a competitor).
NCs are state by state and as always, the devil resides in the details.
The problem with patents, Yancey, is that they disclose the secrets as part of the patent process.
I once worked for a company that had a lot of patents. But they also had IP that they did not patent because that would have required disclosing certain methods that they did not want competitors to know.
Yeah, you can defend the patent and lots of lawyers get rich from that. Companies can go bankrupt defending patents.
Aren't you a patent lawyer? Or am I confusing you with someone else here?
John Henry
NorthOfTheOneOhOne:
"...a noncompete kept the worker locked in place and unable to freely switch to a job that didn't conflict with their religious practices."
I call bullshit on that! If you're so specialized that you can't find related work in your chosen field, then the problem is you.
It doesn't even make sense. You become that specialized by gaining experience and education in your field. Shifting to pretty much any other position within would be easy to do which then begs the question What religious practices were in conflict?
Chevron strikes again.
During a virtual campaign event with members of the Service Employees International Union on July 22,[2020] presumptive Democratic presidential nominee Joe Biden falsely said that McDonald’s required its employees to sign noncompete contracts preventing them from going to work for other fast-food restaurants such as Burger King.
I think "falsely" is redundant with Joe Biden said. If he said it, it was likely false.
https://www.factcheck.org/2020/07/bidens-false-claim-about-mcdonalds/
OTOH, Jimmy John's eliminated non-compete contracts in 2014 in a settlement with NY State. So it has been going on for a while.
https://www.cnbc.com/2016/06/22/jimmy-johns-drops-non-compete-clauses-following-settlement.html
John Henry
speaking of "noncompetes"..
Paul Ryan Praises Speaker Johnson for Allowing Democrats to Seize House
Johnson “found his footing, and his voice. … [H]e did it as a statesman, risking his own personal political fortune for the greater good that he believes in,” Ryan told Axios Tuesday.
i can Only Assume, that the "greater good" Ryan is talking about; is the democrat party
What about a physician, lawyer, accountant or others who sign an agreement not to take clients with them if they leave the practice?
I don't think this is a "non-compete" if it allows them to establish a practice, is it?
But finding clients is hard. Not only hard, it is a pain in the ass. (I speak from experience) so it sort of ties me to the practice.
I'm not sure if this is what Sydney was getting at. I do think that ownership and use of client lists can be contentious.
There was an issue 10 where Apple and Google and others had an agreement not to hire each others employees. They paid a hefty fine.
https://www.cnet.com/tech/tech-industry/apple-google-others-settle-anti-poaching-lawsuit-for-415-million/
But there was also an issue where Arby's franchises got together and agreed not to hire one anothers employees that I found interesting.
Clearly, if one company owns multiple franchises, they would have the right to decide who works where. What about when each franchise is individually owned? Can they collude like this? Is it even collusion?
John Henry
I'm for whatever the Chamber is against.
What about non-disclosure agreements (NDAs) are they covered by this?
I've signed several hundred over the past 40 years. They don't prevent me from consulting for competitors. They do forbid me from sharing non-public information learned in the course of my consulting.
Should they be illegal? I've never had a problem signing them.
I was once asked to work on an issue with filling white phosphorus into artillery shells at an Army plant. It literally took 2 full days, a special insurance rider, and 8-10 pages of forms.
And I didn't even get the gig!
John Henry
I'd be willing to bet that Donald Trump has signed non-competes. As in, "I'll let you brand your hotel, golf course etc with TRUMP and agree not to allow use of the name in a similar business within 500 miles"
I have no problem with that. Would have a problem with anyone who did.
Or exclusivity. I used to be exclusive agent for a number of companies in Puerto Rico. That meant that if anyone bought something in Puerto Rico, I got my 15% even if I had nothing to do with it.
If they bought via corporate in the upper 50 to be shipped to PR, I still got a piece of the commission.
John Henry
Can the FTC just make up rules - laws? If they are 'banning' it, what is the penalty for non-compliance (sic)?
Good move. One benefit of employment in CA is they do not enforce non-compete agreements. I think they are abusive. Hard for me to understand this being a party-line issue. Trade secrets can be protected with an NDA; I know I've signed several over the years for trade secrets during due diligence and for collaboration between two manufacturers. Customer lists are considered proprietary as well.
Or is the GOP now also pretending NDAs are illegal?
There are also rules indicating what a non-compete clause cannot include. Most are unenforceable, and those that are, I would imagine to be too costly to litigate.
@Yancey Ward at 9:35AM: not all secrets are patentable, but it is no-less a secret. Should such a secret become public, it could be financially damaging to the company or person who has that secret. As such, a non-disclosure agreement may be appropriate.
AS an At will employee in my state, I can be fired at any moment. Why then should the company retain the right to tell me I cannot go to a competitor?
They aren't going to give me 2 weeks notice of my job ending. They will just shut down my access to the data centers and off I go with my things in a box.
Once again a Biden agency going out of its lane to intrude upon areas that it has no jurisdiction over. The Federal Trade Commission has no business issuing generalized labor regulations that apply to all employers.
@Darkisland,
Usually noncompetes for physicians just say you can not set up a practice or work for another practice/hospital within a certain mile radius - 10, 20, 30 miles. They can't stop patients from leaving and following the physician to their new practice, so that's why it's a geographical limit, to discourage patients from following.
NorthOfTheOneOhOne:
"...a noncompete kept the worker locked in place and unable to freely switch to a job that didn't conflict with their religious practices."
I call bullshit on that! If you're so specialized that you can't find related work in your chosen field, then the problem is you.
It doesn't even make sense. You become that specialized by gaining experience and education in your field. Shifting to pretty much any other position within would be easy to do which then begs the question What religious practices were in conflict?
If you were a pro-life physician who did not want to perform abortions, or if you were a physician who maintains it is wrong to give children puberty blockers, and your hospital employer suddenly puts in place a policy that you must peform abortions or prescribe puberty blockers, then a non-compete clause in your contract can prevent you from leaving. For physicians, the noncompetes usually prevent you from practicing medicine within a certain radius of your current practice, to discourge patients from following you. You would have to uproot your family and start all over again in a new location, if you can find an employer who doesn't have the same practice proscriptions.
Trade secrets serve no useful purpose in so far as the general welfare is concerned. In fact, just the opposite. Think about it.
First, I don’t see how this is a federal issue. Second, it seems to me the burden should be on those who want to ban voluntary agreements between consenting adults to make the case. If someone doesn’t like the terms of a non-compete clause, negotiate something better or don’t take the job. There should be a lot of details to be worked out: duration of the non-compete, severance pay, contingency on voluntary vs involuntary separation, etc.
Non-competes can be useful and perhaps necessary in some cases. They can also be abused. I have no objection to the reform of the practice.
The problem is the FTC has no authority to do this.
The FWB wanted me to sign a no-compete agreement and I said, Noooooo, I don't think so.
FTC has no statutory authority to promulgate such a rule.
Luke Lea: "Trade secrets serve no useful purpose in so far as the general welfare is concerned. In fact, just the opposite. Think about it."
I have. What about the formula for Coca-Cola, that's been protected for all these years as a trade secret? Think about it.
Mike said what I came to say- it is the NDA not the non-compete. Companies are abusing them. I’ll observe the system sorting out this latest fubar…
You forget this fact. Regulations not laws.
It is by nibbles and bites that your freedom is eroded, not gulps.
The regulatory state is the ruler over all.
I'd wager the vast majority of intellectual property developed in Silicon Valley is non-patentable (or impractical to patent). Non-competes help protect this category of intellectual property, especially where job-hopping to a competitor is common.
Doesn't an NDA cover this?
Trade secrets serve no useful purpose in so far as the general welfare is concerned. In fact, just the opposite. Think about it.
But it's only the federal government that is required to "promote the general welfare." No one else has the obligation to do so. And trade secrets may be (often are, I gather) developed through time, effort, and expense - why shouldn't the developer be able to try to recoup at least the expense? Everyone else is perfectly free to try to develop the same thing, process, or whatever.
DI wrote: "How is it uncompensated? They are getting the paycheck, are they not? Is that not compensation?"
Before, employers had to pay to keep the employees from starting a new job at competitor for a certain period of time. Now many non-compete clauses have no compensation, which is the main problem.
My wife recently attended a great presentation on "hospital deserts", which are areas where people lack access to hospitals or primary care providers. One major contributing factor is non-compete agreements for nurses and other medical professionals.
What's interesting is noncompetes are illegal in California, home of Silicon Valley and innovation. But NDAs, assignment of IP to previous employers, patent, trademark and copyright protections are still in force.
What's also interesting is that the state of NY is home of the noncompete, used primarily in financial services such as hedge funds. Some of the world's most successful hedge funds are run by Renaissance Technologies, who sued successfully two ex employees on the basis of their noncompetes, as well as supposedly stealing their algorithms.
This might remake parts of financial services in NY big time.
Darkisland said...
"The problem with patents, Yancey, is that they disclose the secrets as part of the patent process."
>>>>>but that's the Quid pro Quo of the patent system. You reveal your invention, which advances the technology for others to build on.
>>>>>if someone just lifts your invention, you can sue for infringement damages and/or royalties (which can be a costly process, I admit).
>>>>>But if someone comes up with a patentable improvement (there are legal requirements to be met) on your invention, they can patent that (but still owe you royalties if they use your prior invention).
"I once worked for a company that had a lot of patents. But they also had IP that they did not patent because that would have required disclosing certain methods that they did not want competitors to know."
>>>>>Trade secrets can indeed be valuable. The prime example is Zildjian cymbals, which are made using a centuries-old secret process. Apparently, drummers like Ringo consider them the best, and the Zildjian people want to keep it that way. BUT if someone succeeds in reverse engineering them, Zildjian will be unable to claim infringement. That's the risk they have chosen to take.
Generally speaking, the exception in California to the ban on non-competes is a non-compete in connection with the sale of a business. So you can't sell your business, then turn around and start a competing business.
"There are myriad instances in which a trade secret isn't patentable, for a variety of reasons, but the trade secret is just as valuable as if it were patentable."
I think it extremely naive to think a trade secret that can't be patented for a "myriad of reasons" isn't already a generally known method by one's competitors, who probably think they have a trade "secret", too. If you have a really good method for something, then it is all but certain your competitors will discover the exact same method. A question of "how do they do that so well" is always discoverable, even if you have to resort to espionage- there isn't a shortage of clever or ruthless people in most industries. If your secret can't be patented, then you can't use that it hasn't been patented as reasoning to think it is a secret.
In any case, better to protect your "secret" with a patent or an NDA- a non-compete isn't the way to go.
Sorry, John Henry, but Sydney is absolutely correct. Major hospital systems that often control half or more of the medical care in vast urban regions are quietly forcing abortion, gender speech, and transition medicine rules on their staffs, along with NDAs and non-competes. So doctors cannot even exercise free speech against mutilating children on their own time, or they will find themselves having to move to another city, if they can even find another job. We have a massive nurse shortage, yet the same is true for nurses. And aides, who cannot even afford to move. Referrals become impossible; medical care is threatened; literally, lives are threatened. And boy, are the big medical care chains trying to keep this under the rug. A speech therapist, for example, can't just go out and establish a practice without referrals: now, here in Atlanta, they had better be willing to participate in teaching transitioning children to alter the sexual intonation of their voices if they want referrals to work with stroke patients, a large part of their practice. And as health insurance usually requires referrals, patients are given no choice either. How many people know which hospital systems are doing this? A whole damn lot, but they're not allowed to talk about it.
Stay silent, speech therapist, or you will be a therapist of speech no more.
All I want to know is if the "eleven herbs and spices" used by Col. Harland Sanders is still a secret or not? Are NDAs required in the higher-up offices of what was once Kentucky Fried Chicken? This is a tale that must be told!
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