Are Non-competes Hurting Seattle’s Tech Industry?

This was the question posed more broadly in Fortune’s recent article “Are noncompete agreements hurting tech innovation?”

Washington joins Massachusetts and Rhode Island in considering new legislation that would severely limit or void many non-compete agreements. Known in Washington as House Bill 1926, the law would principally require that “every contract by which a person is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void.” If enacted, Washington would join other leading states like California that severely limit non-compete agreements in employee contracts.

Supporters of the bill point to the enormous success of the tech industry in Silicon Valley where similar bans exist. However, critics say non-competes are necessary to protect the employer’s investment in training, education, and exposure to confidential company information.

For the casual reader, non-competes agreements in Washington are often thought of in three parts: (1) agreements to not work for a competitor/customer; (2) agreements to not solicit customers; and (3) agreements to not solicit employees. The three are colloquially thought of as one agreement. However, Washington courts view each of these provisions differently with the burden on the employer to show that the agreement is reasonable.[1]

The debate surrounding non-compete agreements have increased due to recent reports of non-compete clauses showing up in low-wage manual labor contracts. The New York Times reported in 2014 of non-compete agreements showing up in Jimmy John’s employee contracts. The company’s actions have prompted congressional attention to ban non-competes for certain worker categories or workers earning below a monetary threshold. This is a notable contrast to non-competes widespread use for high-wage earners such as executives, engineers, scientists and high-commission sales employees.

[1] Sheppard v. Blackstock Lumber Co. 85 Wn.2d 929, 933, 540 P.2d 1373 (1975).

When Fitbit Data Is Called As A Witness In Your Injury Case

Last week, The Atlantic and Forbes, both reported on first use of Fitbit (or wearable technology’s) use in the courtroom. According to the articles, the personal injury suit involves an injured personal trainer who is using Fitbit to support her testimony about her reduced levels of activity following an injury. Her Fitbit data is analyzed by Vivametrica and measured against activity data from the general population. Although the case is occurring in Canada, it signals the increasing interest from both personal injury lawyers and insurance defense lawyers on the use of this data.

One can imagine the scenario where an individual has used the Fitbit months before a major injury and thus continued to use it following the accident. The data, if collected accurately, may illustrate the change in activity levels. This evidence could prove helpful to a jury in evaluating the impact an injury has on a plaintiff, one of the most difficult areas of a case to prove.

While this is reportedly the first use of Fitbit data in the courtroom, the use of data from social fitness sites has been used before. In 2012, the performance tracking site Strava came under scrutiny following a fatal collision between a cyclist using Strava and 71-year old Sutchi Huia crossing the street with his wife in New York City. Strava also came under attack in a personal injury suit brought by the estate of the cyclist fatally injured while attempting to set a new record on the performance tracking site. The use of performance tracking data from wearable devices will be seen more frequently as consumer demand and improvement in tracking technology occurs.