Non-compete lawsuit against smashed cucumber cook draws ire

In the heat of high summer, smashed cucumber salad is a popular cold dish, whether at home or in a restaurant.

The simple dish can be whipped up in five minutes, by first smashing the cucumber, usually with the flat side of a cleaver, so as to allow for better absorption of the sauce that includes mashed garlic, rice vinegar, and soy sauce.

It seems a simple and palatable dish – except for a chef in Jiangsu surnamed Liu who recently found himself in hot water after being sued by his former employer for violating a non-compete agreement by making the dish in another restaurant.

In a recent case heard in a court in Jiangning District in Nanjing, Jiangsu Province, Liu, whose former job included smashing cucumbers and boiling edamame beans, was sued for 100,000 yuan (US$13,770) damages after Liu began to work for another employer.

The court dismissed the suit.

The brazen case of abusing non-compete agreements was not an isolated one, with an increasing number of companies abusing such agreements.

A non-compete agreement is a legal agreement or clause in a contract designed to prohibit the employee from revealing proprietary information or secrets to any other parties during or after their employment, and as such common sense should tell us that this should chiefly apply to senior executives, researchers, or other personnel with access to confidential information.

In growing cases of abuse of such provisions, some grassroots workers, salespeople, and even security guards are being described as personnel governed by confidentiality.

Such abuse becomes more outrageous when considering the fact that, in order to enforce a valid non-compete agreement, the former employer may need to keep paying the ex-employee a base salary during the non-compete period.

While it is fairly easy for a court to reach a ruling in the case of smashed cucumbers, it is more subtle in the case of a former employee of, say, a formidable digital company.

One study of 454 verdicts of non-compete civil cases shows that 87 percent of the rulings favor the validity of the confidential provisions, suggesting an excessively liberal interpretation of confidentiality, with some former grassroots employees of big digital companies sued for prohibiting damages in litigation that the employees stand little chance of winning.

This might not always be the judges' fault for, in the case of large digital companies, given the difficulty for an outsider to define the scope of confidentiality, judges tend to rule in light of the signed non-compete agreement, whose existence may have been problematic from the beginning.

In other words, an employee might have, out of ignorance or under duress, signed a confidentiality agreement that would put the employee at a disadvantage in seeking future employment. Over the past decade, the number of similar cases has grown significantly, from only two cases in 2011, to 132 in 2016, and to 249 in 2021.

It is important for legal institutions to be reminded that non-compete agreements are designed to discourage unfair competition, not to stifle reasonable labor mobility.

The abuse of confidentiality provisions, to the degree of barring grassroots workers or even a cold salad cook from working for another company or restaurant is a ludicrous distortion of the meaning of confidentiality that favors unscrupulous employers.

This is a tendency that should not be encouraged, least of all by legal authorities, whose rulings should strike a balance between protecting proprietary information and safeguarding a small-time cook's basic right to smash cucumbers at a different restaurant.