I haven't spent a lot of time on non-compete agreements here at the Capitalist, mainly because the HR world at large doesn't deal with them a lot on a week-to-week basis, and when they do, it's almost always from a "let's try it" perspective.

Non-competes are traditionally shaky and hard to enforce, depending on your business and the state the agreement is governed by.  My take on the non-compete is this:

1.  Company decides they want one, so legal draws one up, and you present it to the employee as a condition of employment.

2.  Employee leaves, you evaluate the competitor and decide whether you want to pursue.

3.  If you pursue, the only way you win is if the non-compete is very specific about the scope, geography and specific sector/industry/function, and the company/job the former employee took fits those circumstances almost exactly.

An interesting non-compete situation has arisen with an IBM exec who is looking to join Apple.  IBM, as you might expect, isn't thrilled about the prospects.  From the Workplace Prof Blog:

"Just in time to be considered as those of us who teach employment law are writing our finals, IBM filed an action against Mark Papermaster, its manager in charge of IBM’s blade server business. The action seeks to enforce a noncompete agreement between IBM and Papermaster (the agreement can be found here in a post by Seth Weintraub on Computerworld Blogs, Apple Ink), which prohibits Papermaster from working for a competitor for a year. Apple announced today that it it planned to hire Papermaster to run its iPod and iPhone hardware engineering groups.

The noncompete agreement prohibits Papermaster from working for "any significant competitor or major competitor" of IBM or for "any entity that engages in . . . competition with the business units or divisions" of IBM that Papermaster worked in. The parties agreed that the agreement would be governed by New York Law.

So, if the terms of the agreement are reasonable and enforceable, it seems that the key here will be to determine whether Apple is a significant or major competitor of IBM, or whether Apple or any of its subdivisions engage in competition with IBM's blade server business. Weintraub suggests that IBM wants to keep Papermaster from contributing to Apple's chip design:

the terms of the suit . . . seem directly in line with chip design. Apple isn't competing with IBM in the blade field. Nor are they competing directly in the cloud computing space. But they are likely going to be competing with IBM in the chip field fairly soon."

So, let's assume IBM doesn't succeed, or doens't think it will prevail.  There's always time for the 'ole intellectual property/industry secrets argument, as part of the proceedings:

"Another tidbit that might prove fruitful for exploration are the interests that IBM identifies in the agreement, confidential information that Papermaster has access to:

certain or all of the Company's methods, information, systems, plans for acquisition or disposition of products, expansion plans, financial status and plans, customer lists, client data, personnel information and trade secrets of the Company."

The problem with using the IP/trade secrets argument to stop Papermaster from moving to Apple?  He hasn't disclosed it yet, so you have to convince a judge that he would yield information covered or use that information to his advantage.  Tough to do before he's moved to the new gig...

Backup plan for Apple - put Pagemaster in a HR role for a year, than transition him into the new gig...