California non-compete laws: where do they come from? I once read that California non-compete laws come from the gold rush era, and yet I was not able to find any more information about the subject. It would be interesting to understand what historical circumstances led California to have these non-compete laws which many of the other US states don't have. (and why those states don't have such laws) Thank you in advance for any answer whatsoever.
Overview California's prohibition on non-competition clauses was part of the Civil Code it adopted in 1872 which was written predominantly by David Dudley Field II, whose first major accomplishment was drafting a significant overhaul and codification of civil procedure rules for New York State a couple of decades earlier that was widely emulated and became the standard framework for civil procedure until the Federal Rules of Civil Procedure were adopted in the 1930s. He was heavily influenced by European civil codes and by criticism of the common law system. He was an anti-slavery Democrat who later became a Republican and represented (unsuccessfully) the leader of the Tammany Hall's leader Boss Tweed who was the epitome of corrupt machine politics in a trial of the century class criminal case. Another reference that can be reviewed is David S. Clark, &quot;The Civil Law Influence on David Dudley Field's Code of Civil Procedure&quot;, in Mathias Reimann (ed), The Reception of Continental Ideas in the Common Law World: 1820–1920 (1993) 63–87. Long Answer Only three states ban employee noncompetes: California (since 1872, see Edwards v. Arthur Andersen LLP, 44 Cal. 4th 937, 945 (2008)); North Dakota (since 1865—before North Dakota was even a state, see Werlinger v. Mut. Serv. Cas. Ins. Co., 496 N.W.2d 26 (N.D. 1993)); and Oklahoma (since 1890—before Oklahoma was a state, see Brandon Kemp, “Noncompetes in Oklahoma Mergers and Acquisitions,” 88 Okla. B.J. 128, 128 (2017)). (Source) The cited California case at the page cited states: Under the common law, as is still true in many states today, contractual restraints on the practice of a profession, business, or trade, were considered valid, as long as they were reasonably imposed. (Bosley Medical Group v. Abramson (1984) 161 Cal.App.3d 284, 288.) This was true even in California. (Wright v. Ryder (1868) 36 Cal. 342, 357 [relaxing original common law rule that all restraints on trade were invalid in recognition of increasing population and competition in trade].) However, in 1872 California settled public policy in favor of open competition, and rejected the common law “rule of reasonableness,” when the Legislature enacted the Civil Code. (Former Civ. Code, § 1673, repealed by Stats. 1941, ch. 526, § 2, p. 1847, and enacted as Bus. &amp; Prof. Code, § 16600, Stats. 1941, ch. 526, § 1, p. 1834; Bosley, supra, 161 Cal.App.3d at p. 288.)Footnote 3. Today in California, covenants not to compete are void, subject to several exceptions discussed briefly below. Footnote 3: &quot;Prior to oral argument, we granted Andersen’s request that we take judicial notice of various documents providing information on the history of section 16600 and its predecessor statutes. (Evid. Code, §§ 452, 453, 459.)&quot; Wikipedia summarizes the 1872 adoption of the Civil Code in California as follows: The Civil Code of California is a collection of statutes for the State of California. The code is made up of statutes which govern the general obligations and rights of persons within the jurisdiction of California. It was based on a civil code originally prepared by David Dudley Field II for the state of New York (but which was never enacted in that state). It is one of the 29 California Codes and was among the first four enacted in 1872. Though the Code is organized in a manner similar to the inherited Colonial Spanish and Mexican Civil Law civil codes, many of its provisions are codifications of well-established American common law principles. For example, it contains a definition of consideration, a principle in the common law of contracts which has no direct equivalent in civil law systems. Similarly, it codifies the mailbox rule that communication of acceptance is effective when dropped in the mail, which is a feature unique to the common law. First adopted in 1872 and signed into law by then Governor Newton Booth, the Civil Code is divided – similarly to its civil law analogues – into four divisions: &quot;the first relating to persons&quot;; &quot;the second to property&quot;; &quot;the third to obligations&quot;; &quot;the fourth contains general provisions relating to the three preceding divisions.&quot; Division One contains laws which govern personal rights while Division Two contains laws which govern property rights. Division Three codifies the substantive contract law of the State of California as well as various regulations relating to agency, mortgages, unsecured loans, extensions of credit, and other areas of California law. Division Four defines remedies available in lawsuits, what constitutes a nuisance, various maxims of jurisprudence, and other miscellaneous provisions which relate &quot;to the three preceding divisions.&quot; Although revolutionary for its time, the California Civil Code was actually the third successfully enacted codification of the substance of the common law. The first was the Code of Georgia of 1861 (largely based on the work of Thomas Reade Rootes Cobb independent of Field), which is the ancestor of today's Official Code of Georgia Annotated. Then Dakota Territory beat California to the punch by becoming the first jurisdiction to enact Field's civil code in 1866. David Dudley Field II's audacity in trying to codify all of the general principles of the common law (including the law of property, domestic relations, contracts, and torts) into general statutory law in the form of a civil code was extremely controversial in the American legal community, both in his time and ever since. Most U.S. states (as well as most other common law jurisdictions) declined to pursue such an aggressive codification. The Restatements of the Law were developed in the 20th century as a compromise between those who felt the common law was a disorganized mess and those who valued the flexibility and richness of the common law. Only California, North Dakota, South Dakota, and Montana enacted virtually all of Field's civil code, while Idaho partially enacted the contract sections but omitted the tort sections. Later, Guam borrowed much of the California Civil Code for its own legal system. Justice Stephen Johnson Field (who was David Field's brother and was largely responsible for introducing his work to California), praised the California Codes (including the Civil Code) as &quot;perfect in their analysis, admirable in their arrangement, and furnishing a complete code of laws,&quot; while English jurist Sir Frederick Pollock attacked the Civil Code as &quot;about the worst piece of codification ever produced&quot; and called it &quot;the New York abortion&quot; (since it was never enacted in that state). What was David Dudley Field II's agenda? According to this Wikipedia article: After having practiced law for several years, Field became convinced that the common law in America, and particularly in New York state, needed radical changes to unify and simplify its procedure. 1836 was particularly devastating for Field: his first wife, youngest child, and one of his brothers all died in the same year. To cope with his grief, he paused his law practice, traveled to Europe for over a year and focused on investigating the courts, procedure, and codes of England, France and other countries. He then returned to the United States and labored to bring about a codification of its common law procedure. Upon returning, he also established his own law firm, in which he was joined by his brothers Stephen and Jonathan. Much of Field's ideas on codification and the civil procedure rules were based on the 1825 Louisiana Code of Procedure. The Louisiana code was drafted by jurists including Edward Livingston, Louis Lislet (1762–1832), and Pierre Derbigny. In turn, the Louisiana code was inspired by French (including the French Code of Civil Procedure of 1806), Spanish, and Roman law, the common law tradition, and Livingston's Louisiana Practice Act of 1805. European civil law thus influenced American civil procedure, partially through the intermediary of Louisiana. Livingston helped to prepare criminal and civil codes for Louisiana, and Field's personal papers at Duke University Libraries reveal that he had read Livingston's 1825 report on the Louisiana Civil Code. Field was also influenced by criticism of the common law by his law partner Henry Sedgwick, as well as lawyer William Sampson. Field devoted more than 40 years to this codification project. He began by outlining his proposed reforms in pamphlets, professional journal articles, and legislative testimony, but met with a discouraging lack of interest. In 1846, Field's ideas gained wider notice with publication of a pamphlet, &quot;The Reorganization of the Judiciary&quot;, which influenced that year's New York State Constitutional Convention to report in favor of a codification of the laws. In 1847 he finally had a chance to put his ideas into official form when he was appointed head of a state commission to revise court procedure and practice. . . . In 1857, Field became chair of another state commission, this time for the systematic codification of all of New York state law except for those portions already reported upon by the Commissioner of Practice and Pleadings. In this work he personally prepared almost the whole of the political and civil codes. . . . The codification, which was completed in February 1865, was adopted only in small part by the state of New York, but it served as a model upon which many statutory codes throughout the United States were constructed. For example, although Field's civil code was repeatedly rejected by his home state of New York, it was later adopted in large part by California, Idaho, Montana, North Dakota, and South Dakota, as well as the territory of Guam many years later. (Notably, Idaho largely enacted the contract sections of Field's civil code but declined to enact the tort sections) . . . Thanks to Field's brother, Stephen (who served in the California State Assembly and as California's fifth Chief Justice before being appointed to the U.S. Supreme Court), California bought into Field's codification project more than any other state. California first enacted a Practice Act in 1851 influenced by the Field Code, then in 1872 enacted Field's civil procedure, criminal procedure, civil, penal, and political codes as the first four California Codes (California merged Field's penal and criminal procedure codes into a single code). . . . Field was originally an anti-slavery Democrat, and he supported Martin Van Buren in the Free Soil campaign of 1848. He gave his support to the Republican Party in 1856 and to the Lincoln Administration throughout the American Civil War. Field was part of the team of defense counsel that William M. Tweed [a.k.a. &quot;Boss Tweed&quot;] assembled to defend himself during the first criminal prosecution of Tweed in 1873. Other members of the defense team included John Graham and Elihu Root. This first trial ended when the jury could not agree on a verdict. In a second trial in November 1873, Tweed received a sentence of twelve years in prison and a $12,750 fine from judge Noah Davis.
I have a really good pizza place near my home but the bastards won't deliver when I go interstate! Now, that's discrimination! Yes, it's discrimination. However, it's not unlawful discrimination. Discrimination is not unlawful unless it is on the basis of a protected class. Geography isn't a protected class of itself. It can be if it's used as a proxy for a protected class, such as excluding certain neighbourhoods which correspond with racial or religious groups, but that's not the case here.
Countries, and supranational governments like the EU, have jurisdiction over companies that do business in their jurisdictions. Oracle is technically not a U.S. corporation; it's a closely related group of California and Delaware corporations. Very few companies incorporate under U.S. federal law (I believe some banking corporations are required to, but don't quote me on that). Almost all companies are incorporated under state law. However, if Oracle does business in Texas, it still has to obey Texas law. And if it does business in the EU, it still has to obey EU law. Some laws make distinctions in some corporate matters between domestic corporations (incorporated under that state's laws) and foreign corporations (incorporated under another state's laws). But if you do business in a state, including an EU member state, you still need to obey that state's general laws, including antitrust law. Short version: if you visit another country, you can't go around shooting people, then say, "your laws don't apply to me, I'm an American." Neither can a company, no matter where it's incorporated. As for stopping the merger...any country where the merging companies do business can stop the merged company from doing business there if the merger violates local law. If this is a major, commercially important region like the EU, then failure to get EU approval will stop the merger. If it's a minor territory, the company will sometimes enter into an agreement to divest itself of local assets or entities. For example, if merging Oracle and Sun would create an antitrust problem in the minicomputer repair market in Laos, the merged entities would sell off either Oracle's or Sun's Laotian minicomputer repair division.
This is largely a matter of state law. In California, for example, this would be plainly unlawful (my emphasis): All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, or sexual orientation are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever. (Unruh Civil Rights Act, California Civil Code section 51) Other states may define "business" more narrowly, or exclude professional services. Also, there is the question of professional ethics. Discriminating against a racial group will likely run afoul of the rules of the licensing board, the AMA, the APA, and other organizations. Finally, remind your friend that every racist has what they regard as good reasons for their racism, and your friend is not special in that regard.
In england-and-wales there is no legal requirement, in the private sector, to advertise vacancies and employers can recruit whoever they choose as long as they do not commit unlawful direct or indirect discrimination and follow their own internal HR policies. Re: In the western hemisphere is it quite legal for employers to do things like... Exclude close family/marital relations of existing employees? YES Exclude internal applicants from consideration for jobs for which they have relevant qualifications? YES Hire non-local (here defined as those who can commute to work from their existing home) candidates in preference to local ones similarly qualified? YES Hire foreigners where they have suitable work permits? YES Summarily hire members of the business owner's family? YES as long as they are not &quot;phantom&quot; employees only put on the books soley to evade tax liabilities by, for example, paying a salary when they don't do any actual work.
Some jurisdictions tend to favor non-compete agreements, others hold most of them to be unenforceable. From a very quick search, BC is a little reluctant to enforce them, but they can be valid if sensibly drawn. However, the text you included in the question is not a non-compete agreement at all, it is a non-solicitation agreement, a much less restrictive agreement, which is significantly more likely to be upheld. The agreement quoted in the question does not mandate the employee continuing to work for the employer for any minimum time, not two years, and not six months. (Another provision might specify a required notice period, but that was not quoted and may not be in the agreement.) The agreement quoted does not prohibit the employee, after s/he leaves the job, from working for a competitor of the former employer, not even for a brief period. What the agreement quoted does do, is prohibit the employee from asking individuals and businesses who were customers of the former employer for orders for the same products as are sold by the former employer. This applies to orders on behalf of the employee personally, on behalf of a new employer, or on behalf of a business in which the employee has some sort of ownership stake (such as partner or shareholder). That is all that the quoted language prohibits. This means that the employee cannot ask those who were customers of the old employer, to buy from or through him, the same products that the old employer sells. It does not mean that the former employee cannot sell such products, if the inquiry comes from the customer. This sort of agreement is primarily aimed at preventing a salesperson from taking a client list with him or her to a new employer, and trying to get them to move their business from the salesperson's old employer to his or her new employer or business. If the employee is primarily an instructor and does not also act as a salesperson, this agreement will have almost no effect on him or her. This site discusses such agreement an myths about them in BC, Canada. It says: Non-competition clauses can be enforced by courts in BC. It is true that employers face an uphill battle in getting a judge to agree to enforce a non-compete, but it can and does happen. If you are wondering whether your non-compete will stick, ask an employment lawyer. Enforceability of a non-compete depends on the specifics of the wording of the clause itself and the overall employment contract. Some key considerations are whether the clause is clearly worded, and whether it is limited in time, geography and scope of what is covered. If a non-competition clause is enforced by a judge, it will only be applied to prevent the employee from the specific activities listed. If the employer has missed something from the clause, or there is a “loop-hole,” that is generally fair game. Many contracts include non-solicitation (aka non-solicit) clauses, which are meant to prevent the employee from contacting clients. Non-solicitation clauses are still an uphill battle to enforce, but slightly easier than a non-competition clauses. This is because non-solicits don’t dictate where an employee can work, just what business they can seek out. Even if there is no contract, obligations to respect confidential information, and fiduciary duties (in the case of key employees) last beyond the end of employment and can limit competition. An online paper on &quot;Is my Employee’s Non-Compete Agreement Enforceable?&quot; by Lisa Stam says: In Canada, courts have generally been reluctant to uphold agreements that have the effect of restricting an individual’s ability to earn a living or pursue the job of their choice. Indeed, courts take the initial position that restrictive covenants in employment agreements are unenforceable, unless the employer can demonstrate otherwise. A restrictive covenant must jump through several hoops to be deemed enforceable. ... A non-solicitation agreement will allow a former employee to work for a competitor, but prevent them from soliciting the clients (and possibly the employees) of their former employer for a specific period of time. Former employees may have close relationships with clients. Allowing them to solicit these clients may give them an unfair advantage against the former employer in the marketplace. If the employee does not solicit the client, but the client leaves to follow them anyway, there is little an employer can do. ... If a court finds a restrictive covenant clause unreasonable, for example it restricts solicitation for 12 months when 6 would have been reasonable, they will not read it down to fix it. Canadian courts require the employer to get it right the first time and a flawed clause will therefore normally be unenforceable. In short, the above quoted agreement may not be enforceable. But if it is, it only restricts solicitation, not competition, and does not require the employee to work for the employer for a period of two years, or any other minimum time.
The real question isn't whether there is a law, but whether you want to keep your job. If you want to do something that you believe will affect your company negatively, and you ask whether it's legal or not, the question alone should show you it's a bad idea. And another question is whether you can be sued, and what it will cost you even if you can win a case, and the answers to that are "yes" and "a lot".
This is an amusing idea, but ultimately it seems frivolous: How does one establish the physical presence of a corporation in a car? Yes, corporations have some of the legal rights and liabilities of people, but they are not people. And there are plenty of rights a person has that a corporation does not. For example (at present) a corporation can't be a party to a marriage. The closest a corporation comes to any corporal presence is the address listed of their agents.