Even though the chances of the broad non-compete actually being enforceable are low the threat of being tied up in a litigation is real and expensive. My gut feeling is that they would not enforce it on lowly engineer like myself but if they did I couldn't afford to actually fight it.
wouldn't they sue the employee in question (the poster, or me in that situation) rather than the employer? How are you at fault for hiring someone with a non-compete you didn't know about... what is there to sue you over?
Probably, but employers don't want to invest in hiring someone that could be taken away. Even if the new employer is not involved in anyway they could get sucked into the legal battle and then have to pay to prove they have nothing to do with it. After all you don't have to actually be guilty of anything to be involved in a lawsuit. Also it's possible there is a non-poach agreement if the new employer is a customer of the old employer. In my case a client cannot poach me if I have worked on their project in the past 2 years. Then there are those illegal non-poach agreements...
In the scenario I gave, the potential new employer did know about the non-compete and chose not to hire as a result--whether or not the non-compete would actually have applied. How did we know? We asked as I was asked when I was hired at that company.
That said, in lawsuits, lots of people and organizations tend to get sucked in whether they deserve to be or not. The bottom line is that non-competes have significant chilling effects whether or not lawsuits are ultimately filed.
