Even a very strict libertarian should agree to the obvious harm here: the compensation package with Google that the employee negotiated in good faith has a covenant which was not disclosed to them and is materially against their interests, namely, that signing on the dotted line forecloses future avenues which you might want to pursue. Not only were employees unaware of that, they would have active reasons to believe it would be impossible, because the laws under which that contract was negotiated say in big bold letters that provisions like that are repugnant to the state's sense of justice and will be voided even if spelled out.
There's a credible case for allowing people to sign away future opportunities in return for compensation in the present day, even if their counterparty has excessive leverage in that negotiation. I don't believe it, but I wouldn't think less of you if you do. There's no credible case for the moral righteousness of secret conspiracy against one's own employees' interests which acts to implement a term that you cannot ask for and expressly deny having sought.
It's structurally similar to abuse of overtime. I happen to think you should be allowed to trade more than 40 hours a week in return of an amount of money you find motivational, if that floats your boat. In some jurisdictions, that is illegal. Even if you disagree with that policy, if you're negotiating a contract in those jurisdictions, you're going to assume as part of your offer that you're only agreeing to 40 hours a week for the same reason you assume that negotiating a contract will not secretly obligate you to give them your kidney. If they then stick you with more than 40 hours a week, that's an abuse, even if you don't agree with the law: if you had been aware of the work routinely requiring more than 40 hours, you would have priced that in, but instead you priced it on the assumption of 40 hours in the mistaken belief that that was an externally imposed maximum.
Those are fair points, although I did qualify my statement with "In the absence of fraud". If the employment agreements forbid the behavior then that would be a clear case of fraud. When it comes to implied expectations, I'm not sure it's so clear. My understanding is that bilateral agreements with no-hire stipulations are not explicitly illegal, although the court may rule a specific agreement is depending on how it affects competition in a market. So how many employees actually assumed no non-hire agreements when they signed on and was that a reasonable assumption? I think that's a difficult question to answer.
Either way, I hate that the focus is on the "letter of the law". If this were a patent troll case, or Hollywood copyright, or if SOPA had passed, how many people here would be demanding damages or jail time from the defendants? They would be guilty of breaking the law just the same, and the plaintiffs could also claim that they need to be compensated for their losses (cost of filing for patent, "lost revenues" from pirated material, etc.)
I have to say, though, that my initial post was poorly worded. As I was writing it, in my mind, I thought I was railing against antitrust laws in general and describing how non-hire agreements in the abstract were victimless crimes. Reading those statements again, it seems more like I'm just talking about this particular case. That's totally my fault, I apologize for that. I tend to get worked up about issues like this and have to do a better job of choosing my words, or even stop myself from ranting in the first place.
There's a credible case for allowing people to sign away future opportunities in return for compensation in the present day, even if their counterparty has excessive leverage in that negotiation. I don't believe it, but I wouldn't think less of you if you do. There's no credible case for the moral righteousness of secret conspiracy against one's own employees' interests which acts to implement a term that you cannot ask for and expressly deny having sought.
It's structurally similar to abuse of overtime. I happen to think you should be allowed to trade more than 40 hours a week in return of an amount of money you find motivational, if that floats your boat. In some jurisdictions, that is illegal. Even if you disagree with that policy, if you're negotiating a contract in those jurisdictions, you're going to assume as part of your offer that you're only agreeing to 40 hours a week for the same reason you assume that negotiating a contract will not secretly obligate you to give them your kidney. If they then stick you with more than 40 hours a week, that's an abuse, even if you don't agree with the law: if you had been aware of the work routinely requiring more than 40 hours, you would have priced that in, but instead you priced it on the assumption of 40 hours in the mistaken belief that that was an externally imposed maximum.