Thanks for the great response — a number of very thoughtful posts in this forum. I have read them all (as of 2/10). Additionally, I received several dozen personal email responses on the issue, to which I have also responded. Many good stories, many useful arguments, some helpful specific suggestions.
At a high level, I am once again affirmed in my sense that we need to change the practice on this issue. Employers are using these agreements too broadly and too bluntly. I do respect the views of those who feel that non-competes can sometimes be fair if properly limited in scope and term.
Our current approach — limiting these agreements generally to six months in length (as opposed to the now-typical year) is a compromise approach. We recognize that we can’t do something that is sensitive to all industry contexts and so we are just trying to shift the practice broadly to shorter terms. We recognize that in doing something blunt, we may be going too far in some contexts and not far enough in others.
I take real encouragement from the general support for change that I’ve received in this round of response.
The specific drafting thoughts that make most sense to me come around the clause allowing high level employees to be bound to longer non-competes — we do need to index the $250,000 threshold and should perhaps also include the highest level employees in the company, regardless of their actual compensation (key people in a start-up may not be making much).