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No, the agencies DON'T hold all the cards. What you've been seeing is a
paucity of responses from the people who usually speak up when this
issue arises.
Most general non-compete clauses are fundamentally unenforceable in many
states, except in tightly defined situations. However, "enforceability"
is a court issue, not one that stops attorneys from writing and
threatening and even filing cases. So you, the hapless challenger, wind
up having to pay attorney fees and court costs in order to keep your
right to work in the environment being challenged, whether that's
geographic, industry-defined, or in a specific period of time. And
there's the tradeoff - the agencies usually know most individual
contractors will cave in rather than go to the expense of hiring a
lawyer to do battle for them. It's called intimidation.
However, there's another side to this coin. If you ever expect to work
for this agency again, or for people with whom they do business, it
makes sense to not take them on directly. Many companies who use
agencies to find people for them don't want to get in the middle of a
dispute between an agency and an individual contractor, and will simply
pass on the individual if the agency indicates there's a problem.
Furthermore, especially in Silicon Valley, headhunters tend to move
around a lot, so fighting with one person at an agency may mean
jeopardizing your chances of working with another agency when that
person decides to move.
Agencies in Silicon Valley seem to know better than to have contractors
sign highly restrictive non-compete agreements. A year is OK, but
anything more than that is ridiculous.
Elna Tymes
Los Trancos Systems
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