Farrelly suggests the greatest amount of recruiting among tech rivals these days is in the field of network security, an area that's become hot, given the rise of phishing and other computer threats. "There's a lot of [employee] swapping going on in that industry," he said.
Farrelly says non-compete agreements lasting a year or more are commonplace for upper-level tech employees in sales, but that doesn't keep them from moving to a similar company.
"All my sales guys have non-compete clauses, and they all jump ship," Farrelly said. "[And] when they jump ship, nine times out of 10 they're going to competitors."
By contrast, Korn/Ferry's Cage thinks employees have gotten more careful about abiding by agreements at a time when executive shenanigans can quickly make headlines. "Everyone is just much more open because they realise eventually there's going to be a document trail or some disclosure," he said.
Check the fine print
Even so, employers would be wise to ask their potential hires about previous employment agreements, attorney Jonathan Segal suggested in an essay earlier this year.
"While employers probably have no affirmative duty to ask about restrictive agreements, they do have a duty to take corrective action if they learn that an employee is subject to a binding restrictive agreement," Segal wrote in the essay, published by the Society for Human Resource Management. "Employers that become aware of, but ignore, post-termination restrictions can be held liable."
Segal said employment contracts can include prohibitions against competing with the former employer for a specific period in a specific geographic area; soliciting business from the prior employer's customers or potential customers for a set period; and using or disclosing confidential information created or acquired in the course of employment.
There may be wiggle room in some of these agreements, Segal suggested. For example, the hiring employer may want to closely examine a clause barring the solicitation of customers: "Does the restriction cover only current customers or does it also apply to former and potential customers?" he wrote.
Post-employment contract restrictions are becoming more widespread at California technology companies, said Martin Foley, attorney with the firm Sonnenschein, Nath & Rosenthal. Given the importance of intellectual property to a company's success, businesses are now asking both executives and "worker bees on the line" to sign agreements aimed at safeguarding a company's secrets, Foley said.
But when it comes to non-compete clauses in particular, California tends to side with footloose employees. Except in narrow circumstances, the state's code renders such agreements meaningless.
Not only that, but state courts have at times struck down employment contracts signed outside the state, Foley said. "California has voided non-compete contracts from non-California employers when the employee works in California or lives here," he said.
Foley also said the state has ruled against a legal theory invoked in Microsoft's suit: that former employees will inevitably disclose a company's trade secrets when moving to a competitor.
The Lee case seems to present some tricky questions about jurisdiction. Though Google is based in Mountain View, California, Lee is supposed to lead the company's operations in China.
In their court filing last Thursday, Google and Lee said Lee resides in California.
Microsoft took issue with Google's filing. "Forced to confront its clear violation of Washington law, Google is attempting to manufacture California residency for Dr. Lee in a poorly disguised effort to persuade a California court to treat him as a California resident in order to evade Washington law and renege on the agreement Dr. Lee made to Microsoft," Microsoft said in a statement on Wednesday.
Foley expects some high-powered legal fireworks in the case. "There's going to be a hell of a battle," he said.
