MS and OpenAI certainly have non-solicitation clauses in their contracts. MS could afford the legal battle but isn't it better for them to wait it out and see what happens first?
The letter from OpenAI employees to the board expressly says:
"We, the undersigned, may choose to resign from OpenAl and join the newly announced Microsoft subsidiary run by Sam Altman and Greg Brockman. Microsoft has assured us that there are positions for all OpenAl employees at this new subsidiary should we choose to join."
I think it's safe to say there probably isn't any non-solicitation clause; or at least, it's a very weak one or specific one that Microsoft isn't violating (i.e. you won't reach out over LinkedIn).
It is different between JV partners or between vendor and customer . If non solicit agreement were not legal for those , consulting companies either tech or management consulting will not be able to operate at all .
Do you mean to say that if non-solicitation agreements were entirely unenforceable, consulting companies would see all of their best consultants poached by clients?
I've yet to see a more clear example of solicitation and MS is very much out front with this, presumably their ability to protect their interest in OpenAI outweighs the risk that the competition (Google, etc) would snap up the employees. Think of it as a stop-gap move to ensure that people won't leave and it looks different already. If there is any legal risk (which I doubt) then it is more than offset by their most simple excuse to ignore it, besides the legalities involving non-poaching agreements to begin with.
The clauses are common in the UK but I see them all the time from startups incorporated in Delaware. Maybe they're there for the deterrent factor. Also, hi!
Yes, they get put in but if you try to enforce them you'll find that you can't.
We sign contracts with non-poaching elements in them all the time because the companies we look at are afraid that we will use our inside knowledge to go after their best talent. But I suspect that just the basic protections an employee has under employment law would be enough to stop a company from trying to enforce this (we have a term for this in Dutch which is called 'broodroof' but I don't know any good English translation).
That said: for Execs and consultants it is a different matter. But they are not rank-and-file employees.
