Tokyo Decadence

Today I am working on my paper: provisional title "Non-competition Clauses in Canada and the US, difficulties in private ordering".
What strikes me about a lot the material in this area of employment law is how similar it is to IP. For example, the idea that you can restrict the movement of key employees, and also that you can prevent them from joining your competitor seems to me to be very much akin to having a patent, trademark, or copyright.
You have invested money into that asset or product and feel that it should not be usurp by a competitor.
They way I see it there could be a trade-off in US employment law, whereby Employers are allowed to freely fire their Employees, and Employees are in turn are freely allowed to compete against their Employer as soon as they quit.
Of course if you increase protections for Employees you should also get increased protections for Employers, in a kind of quid pro quo. So in Canada Employers can't simply terminate you for any reason whatsoever, then tell you to pack up your shit and get out. If they do that they are liable for notice pay, and if the termination was without cause then they must pay you additional amounts. In Japan or Europe it goes even further.

In California and a handful of other states non-compete agreements are void as against public policy. You can learn, and open your own business and compete there. So Silicon Valley really benefits from this. Where I see the US as having the worst of all possible worlds is when then employer is free to fire you, but you can't compete.

Of course much of this is only problematic for highly skilled employees. But, as the Harvard Business school study indicates this can effect a significant number of employees who are inventors, especially in more neiche industries. People who have more general skills are much more flexible in terms of who they can compete with and therefore are much less effected by non-competition clauses.

The blue pencil rule is also interesting. Here Canada and a bunch of US states are very tough on Employers and their drafting. If they don't draft correctly then the Employees are totally free.

The use of the Fiduciary concept in Canada is totally out of control. Not only do Fiduciaries in Canada continue to have obligations post employment, they are also expanding. The most recent Supreme Court case which I can't find at the moment.

On a personal note: I think I really need to go on some sort of cardio kick or I will never lose the gut :)