Google executive Marissa Mayer left many unanswered questions this week when she gave notice to Google and started working as the CEO at one of the web-search giant’s competitors, Yahoo. One of the queries making the rounds on Mayer’s Google Plus circles and everyone else’s Twitter feeds caught our attention: ”Did Marissa Mayer have a non-compete?” The short answer is: No. California law doesn’t permit strict non-compete agreements. But the larger question got us thinking. Non-competes and restrictive covenants vary greatly state to state. What lessons can employers and their counsel draw from the discussions Mayer and her new employers likely had before she made her potentially litigious move to Yahoo, a direct competitor? We spoke with general counsel and advisors across the country for a two-part look at the issue. Today we’ll start with tips for how employers can protect themselves when hiring from competing companies, and in part two we’ll look at the process from the employee point of view. How can employers protect themselves when employees make a move like Mayers’s? Michael Greco, a partner at Fisher & Phillips, deserves the credit for bringing this to our attention in a blog post explaining why Mayer does not have a non-compete clause in her contract. In short, it’s a state-by-state thing. The first step companies ought to take when luring talent from their competitors is to understand the legal language around non-competes available in their state. Greco admits there’s an enormous administrative burden on a company asked to write 50 different non-compete agreements for every state. “But I think you need to take a thoughtful approach to the terms of the agreement you intend to rule out,” Greco said. In an earlier post on the subject, he suggests employers identify the jurisdictions in which they have employees and group those jurisdictions into one of three categories:
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