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Legal experts say a growing number of China's leading tech companies are using
noncompete agreements to retain even junior talent as the U.S.-China tech war
heats up. (Illustration by Yoshiko Kawano)
The Big Story


CHINA'S TECH WORKERS TRAPPED IN JOBS BY NONCOMPETE CONTRACTS

From Tencent to Pinduoduo, companies use surveillance and lawsuits to retain
staff as competition ramps up

CISSY ZHOU, Nikkei staff writerApril 3, 2024 06:00 JST | China
CopyCopied


HONG KONG -- On a chilly night in late February, 24-year-old tech worker Emma
decided to kill herself.

Scared of pain, she chose to drown herself in a river in the city of Hangzhou.
The freezing water made her shiver all over, but she continued slowly walking
forward. Then, she thought of her disabled father, who depends on her financial
support every month.

"Could my farmer parents survive if they lost their only daughter?" Emma asked
herself. Fortunately, while she was wandering indecisively in the shallows,
having left a despondent note on social media, her boyfriend came to find her
and pulled her ashore.



For more than a year, Emma had been agonizing about money: She had been directed
to pay compensation -- almost three times her annual income -- to her former
employer, the Chinese bargain shopping app Pinduoduo.

Pinduoduo argued Emma had breached a noncompete agreement by joining the
affiliate of a rival e-commerce company. Emma maintains that her current job has
no overlap with what she was doing at her former employer. At Pinduoduo, she was
dealing with food vendors for the domestic market; now she deals with toy
manufacturers and targets overseas markets.

Pinduoduo is a formidable force in China's e-commerce market, and it was not
willing to overlook what it saw as a breach of contract by one of its former
employees. Since its founding in 2015, the company's aggressive tactics and
strict corporate culture have helped it break into the top ranks of China's
internet giants: Its parent, PDD Holdings, briefly surpassed Alibaba Group
Holding in market capitalization and became the most valuable Chinese company
listed in the U.S. last year.

Chinese e-commerce giant Pinduoduo is among a growing number of tech companies
taking noncompete agreements to the extreme in a bid to retain talent and
protect trade secrets.    © Reuters

As competition increases, so does pressure on employees. Emma, who asked that
her real name not be used, is one of an increasing number of Chinese tech
workers facing legal action from former employers looking to enforce strict
noncompete clauses. These agreements are common in other countries and were
initially designed to protect a company's trade secrets by discouraging senior
executives from leaving for rivals. However, they have become pervasive in China
and are evolving into powerful tools for companies like Pinduoduo, Tencent,
ByteDance, Baidu, EV battery giant CATL and others to prevent even junior
workers from jumping to rival employers.

"In China, companies have been exploiting noncompete agreements by significantly
expanding their reach, leading to their misuse," said Shen Jianfeng, director of
the Research Center for Labor Law and Social Security Law at the Central
University of Finance and Economics in Beijing.

A typical noncompete agreement stipulates that an employee will not join a rival
for up to a certain length of time after leaving their previous employer.
Breaking such an agreement risks legal action, which can leave the employee
facing a massive financial penalty or having to remain unemployed for up to two
years, with only a small stipend from their former employer. After such a long
gap, some employees find it all but impossible to return to work in their chosen
field.

"While it may appear to be a mutual agreement, refusing to sign such agreements
may result in job loss," Shen said, "so there is a significant power imbalance
between employers and employees. A lot of employees may not comprehend the
potential consequences associated with such agreements when they sign them."

Nikkei Asia's analysis of court documents reveals that some of China's tech
giants, including TikTok parent ByteDance, have kept tabs on former employees
via secret filming and recording.   © Reuters

Some Chinese companies are also resorting to measures such as surveillance to
gather evidence on former employees, a controversial practice that is
traumatizing workers but is often accepted as legitimate evidence by China's
legal system.

Through analyzing hundreds of Chinese court documents and interviews with a
dozen tech workers and numerous legal experts, Nikkei Asia has obtained
exclusive insight into how China's biggest tech companies are using noncompete
agreements to cling onto workers at all costs, which experts say is not only a
violation of human rights but also a threat to the country's innovation as the
U.S.-China tech war deepens.

Stalking and secret filming

Emma joined Pinduoduo's grocery unit, known for its grueling work hours, in the
southern city of Nanning after graduating from a small college in 2022. Facing
more than 12 hours of work a day without any days off, she says, Emma resigned
after around eight months, feeling on the verge of physical and mental collapse.
She had lost more than 5 kilograms and was diagnosed with hyperthyroidism.

On her first day at Pinduoduo, Emma had been asked to sign a "confidentiality,
noncompete and intellectual ownership agreement," and upon resignation was asked
to sign a "notice letter" that would restrict her from working for rival
companies, or any affiliates in which those companies have a stake of more than
20%, for the next nine months. During that time, Pinduoduo would pay her 2,400
yuan ($330), or 30% of her previous basic salary, each month. If she broke the
agreement, Emma would have to pay the company 24 months' worth of salary and
return the compensation she had received.

E-commerce titan Pinduoduo is known in China for its grueling work hours and
high-pressure environment.   © Reuters

She signed both documents with little hesitation. Secure in her belief that
Pinduoduo wouldn’t bother chasing her as she was so junior and “didn’t hold any
trade secrets,” she did what many young tech professionals do and started to
look for a new job.

In October 2023, Emma received a labor arbitration claim from Pinduoduo,
requesting her to pay 280,000 yuan as compensation. The evidence Pinduoduo
presented to the arbitrator was a series of secretly filmed videos of Emma
leaving her residence and entering her new workplace.

It was only when she saw the videos that Emma realized she had been followed to
and from her new job for weeks by a portly, middle-aged man, discretely
recording her from a distance, whose reflection was clearly visible in some
footage. In the following days, Emma said, she had nightmares of being stalked.
"I am so scared," she wrote on the social media site Weibo. "I don't know if I
am being stalked again. I keep looking behind me whenever I walk down the street
now."

In a statement to Nikkei, a Pinduoduo spokesperson said the company has never
"engaged in illegal surveillance of either current or former employees." The
company "respects personal privacy, and Chinese law has strict regulations on
personal privacy."

Emma is not the only person in China who has been subjected to surveillance by a
former employer.

In the past decade or so, as competition among Chinese tech companies has
intensified, the number of publicly available lawsuits over noncompete
agreements has skyrocketed. In 2020, the number of court rulings related to
noncompete agreements was four times higher than in 2015. Many tech
companies expanded at their fastest clips during those years.



Since Beijing began cracking down on the tech sector in late 2020, leading tech
companies such as Tencent and Alibaba started to lay off staff to save costs,
though PDD Holdings kept expanding as its Temu subsidiary grew in overseas
markets.

The lawsuit numbers released by China's Supreme Court might be the tip of the
iceberg, as the system does not publicize the results of arbitration, a method
for resolving disputes in private without going to court. The figures also
exclude cases labeled by the companies as "sensitive."

Pinduoduo, Alibaba, Tencent, ByteDance, JD.com and Baidu have all monitored and
videotaped former employees from the moment they left their residential
compounds until they reached their new workplaces, according to hundreds of
court documents viewed by Nikkei.

This surveillance and recording typically continued for seven to 14 days and was
presented in court as evidence. Despite employees' and their lawyers' objecting
to the legality of the footage, arbitrators and judges accepted it as evidence
in most of the cases reviewed by Nikkei.

Legal scholars and lawyers not involved in these cases told Nikkei it would be
difficult for employees to claim protection under privacy or data protection
laws in China, as companies can argue that the footage was taken in public
places.

Alibaba, JD, Baidu and ByteDance all declined Nikkei's requests for comment on
this article. Tencent, which did not comment on its methods of gathering
evidence, said the company does use noncompete agreements, "but these are used
sparingly and only for the purpose of protecting our most critical [intellectual
property]."

Cat and mouse

Companies can go to creative and sometimes extreme lengths to collect evidence
of noncompete breaches, a sign of how seriously they take the issue of talent
retention.

In some cases, current employees have been sent to apply for a job at a rival
company to gather proof that a former colleague is employed there. Other
practices have included sending deliveries or flower bouquets to rival companies
and requesting a specific recipient to sign for them, gathering body temperature
records collected by former employees' new workplaces during the COVID-19
pandemic, or obtaining an employee's social security record from their new
company, which is possible with a court's approval.

Employees looking to counter such surveillance often play cat and mouse with
former employers. Practices such as wearing masks and sunglasses, assuming
pseudonyms at their new company, or orchestrating job contracts with outside
agencies used to camouflage their real employer, are common, industry insiders
told Nikkei.

In 2018, TikTok parent ByteDance, for example, started to aggressively recruit
from rivals, particularly Baidu and Tencent, as its business extended rapidly to
include gaming, education and e-commerce. Its workforce expanded from around
20,000 employees in 2018 to nearly 100,000 by 2020. Court documents show that in
several instances, former Tencent employees would sign contracts with human
resource companies but would actually show up at ByteDance's office, using
official ByteDance office passes on a daily basis. ByteDance declined to comment
on this.

When Tencent initiated legal action against the exodus of employees to
ByteDance, local courts mostly ruled in the former company's favor. The company
presented surveillance footage in most of its cases, according to Nikkei's
analysis of court documents.

Chinese tech giant Tencent has taken dozens of former employees to court over
the past few years regarding what it perceives to be broken noncompete
agreements.    © Reuters

While many former employees actively cover their tracks when seeking new work,
they are still at a distinct disadvantage when confronted with the huge
resources of some of China's wealthiest and most powerful companies.

"There are specialists dedicated to noncompete matters in leading tech
companies," said Shen, the Beijing legal expert. "These specialists consistently
study policies and possess a comprehensive understanding of the legal boundaries
within the court system. In fact, their knowledge of these boundaries may
surpass that of judges who only encounter such cases occasionally."

Given the low cost of signing a noncompete agreement, many companies are now
expanding them to every employee, even office cleaners in one extreme case,
according to court documents.

Yang Haonan, an expert on labor and employment law at Guangdong University of
Foreign Studies in Guangzhou, said it is illegal for companies to
indiscriminately require every employee to sign a noncompete agreement.

The scope of noncompete agreements under China's Labor Contract Law is
"ambiguous," said Yang, but "that does not mean there are no boundaries."
He stressed that such agreements are meant to protect "the legitimate business
interests of the employers [and] must not be misused to unduly restrain general
competition."

Pushing back

Some workers are starting to speak up.

In early February, 11 former Pinduoduo employees took to social media to expose
what they say is the company's misuse of noncompete agreements. In a public
letter posted on Weibo, the Chinese equivalent of X, the workers, with an
average age of 30, said, "Pinduoduo's abuse of noncompete agreements has
seriously impeded the employment rights and livelihood of workers."

The workers say they refused to pay any compensation to the company, as they
were neither senior management nor senior technical staff and argue that because
Pinduoduo enforces a strict firewall system between different departments, there
was no way for them to obtain trade secrets.

While all new hires are required to sign noncompete agreements, Pinduoduo said
in a statement to Nikkei that "only a very small number" of departing junior
staff are subject to noncompete agreements when they leave. From September 2023
to February 2024, the number of former employees the company sued for noncompete
violations accounted for "less than 2% of the total number of employees who left
the company during the same period," the statement says.

As the China-U.S. tech rivalry heats up, China's leading internet players are
employing extreme measures to retain workers.   © Reuters

"Junior staff form the backbone of the workforce at Pinduoduo. These individuals
often hold unique positions with access to valuable corporate assets, such as
special pricing contract information or special business logic code," the
Pinduoduo spokesperson said.

At least three of the 11 former workers who posted on Weibo told Nikkei they
were diagnosed with serious depression after legal proceedings were launched
against them. One algorithm engineer said he had tried to commit suicide and was
thinking about jumping off the roof of Pinduoduo's home office in Shanghai
because he is being asked to pay the company 4.5 million yuan after working
there for 4 and a half years.

One of those former employees is Samuel, who says he was a middle-level manager
at Pinduoduo. When he joined the company in 2018, he said, he was asked to sign
a noncompete agreement that included a list of rival companies. In 2019,
Pinduoduo asked him to sign a supplementary noncompete agreement with an updated
list of rivals and an additional clause: If Samuel violated the agreement, he
would have to return all of his exercised restricted stock units (RSU) --
originally part of his annual salary package -- and would be barred from
exercising the rest.

"I was forced to sign the supplementary agreement. If I didn't sign, I would
have had to resign," Samuel said.

After leaving Pinduoduo in 2021, Samuel sold 50% of his RSUs worth over 10
million yuan. He used the money to buy an apartment and start two companies, one
selling health supplements and the other engaging in live e-commerce.

Pinduoduo sued him and asked him to pay back what he received from the share
sale, saying it had evidence he joined an affiliate of delivery platform
Meituan. Samuel argues that he only asked the company to pay social security
contributions for him so that he would be eligible to buy an apartment in
Shanghai.

Extreme uses of noncompete agreements have driven workers at some of China's
biggest tech companies into depression and even attempted suicide, Nikkei Asia
research has found.   © Reuters

Pinduoduo also argued the two companies Samuel founded overlapped with
Pinduoduo's business scope, which they considered further evidence of a breach
of the noncompete agreement. Chinese companies tend to describe the scope of
their business activities as broadly as possible in corporate registrations.
Pinduoduo and its affiliates are involved in more than 50 business categories,
according to their registrations, covering almost every aspect of daily life.

Samuel says he would be unable to pay what the company is demanding even if he
sold his apartment because its price has plunged by half amid China's property
crisis.

The price of speaking up is also rising. After nonstop posts on social media,
some of the 11 former Pinduoduo employees say they have been taken to police
stations for questioning or received warnings from police.

"There is significant evidence indicating that [some of the former employees]
deliberately produced false information with the intent to mislead others," a
Pinduoduo spokesperson said of the 11 workers. "Such actions bring into question
the true motivations behind these allegations." The company did not comment on
whether it had anything to do with the police action.

Legal gray zones

On paper, Chinese law restricts noncompete agreements to "senior management
roles, senior technical roles, and those with confidentiality obligations," but
the law does not explicitly define what constitutes senior technical personnel
or personnel with confidentiality obligations. As a result, many companies use
contractual agreements with employees to determine who has such obligations.

A Shanghai-based lawyer specializing in noncompete agreements who asked not to
be named told Nikkei that while such agreements are common at Fortune Global 500
companies, the enforcement of them in China is more far-reaching and companies
hold more sway.



"Even if a former employee doesn't possess highly confidential skills, the
company has the discretion to impose noncompetes if they consider it necessary,"
the lawyer said.

In the 2000s and with a booming economy, China enacted a flurry of legislation
aimed at protecting workers' rights. This was partly an effort to maintain
social stability -- one of the top priorities of the Chinese Communist Party --
by making it difficult for businesses to fire unfit workers. The moves
encountered strong objections from companies and even some legal scholars who
argued that the laws placed a heavy burden on businesses.

But as economic growth started to slow after 2010, Beijing began to prioritize
creating a more favorable environment for businesses, which meant less emphasis
on workers' rights.

From companies' point of view, given the complexity of the Labor Contract Law,
noncompete agreements were a useful tool to reduce disputes when employees left,
such as claims over unpaid overtime or denied vacation, Shen, the lawyer, said.

And when it came to arguing breaches in front of judges, rulings tended to favor
companies.

In most cases reviewed by Nikkei, companies have prevailed in court without
having to present evidence of the exact trade secrets the employees allegedly
held and what losses the company suffered after they left.

For example, Tesla supplier CATL, the world's largest EV battery maker, sued
33-year-old former sales representative Yang Yun for 1 million yuan in 2020.
Yang had worked at the company for less than two years, and his monthly salary
was just 9,000 yuan.

After leaving, Yang joined an affiliate of a company in clean energy, a sector
covered by his noncompete agreement with CATL. The court ruled in the battery
maker's favor, even though the company did not provide evidence requested by
Yang of what trade secret he obtained and what losses CATL suffered from his
resignation. CATL declined Nikkei's request for comment.

EV battery maker CATL won a court case against a former employee it had accused
of breaching a noncompete agreement in Fujian province in 2020.    © AP

The same court in Fujian province, where CATL is headquartered, ruled in CATL's
favor in a dozen similar cases, and all appeals by former employees have failed.

While companies often prevail, there are exceptions.

In a 2020 verdict in favor of a former project manager from a consulting firm, a
Shenzhen court said an overly broad noncompete agreement would "excessively
deprive workers of their job opportunities." It should also be examined, the
court said, whether the employee really had access to and acquired trade
secrets, and whether the employee was using those secrets in their new position
and causing financial losses to the original company.

But such wins are rare, and with China's tech rivalry with the U.S. heating up,
experts worry that a constrained workforce will stifle innovation in Asia's
biggest economy.

In the U.S., the Federal Trade Commission, which enforces antitrust law, is
expected to vote on its sweeping proposal to ban noncompete agreements this
month. In the case of a yes vote, the ban would go into effect soon after.

Some states already prohibit noncompete clauses. In California's case, its ban
is often credited for Silicon Valley's success.

"Noncompetes have a clear impact on workforce mobility and can also affect
China's core technological competitiveness," Shen said. "When individuals are
restricted from pursuing their intended activities, their full potential cannot
be fully utilized. This not only leads to personal losses but also has adverse
consequences for industrial development."










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technologies etc.) can be stored or read on your device to recognise it each
time it connects to an app or to a website, for one or several of the purposes
presented here.

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USE LIMITED DATA TO SELECT ADVERTISING

Advertising presented to you on this service can be based on limited data, such
as the website or app you are using, your non-precise location, your device type
or which content you are (or have been) interacting with (for example, to limit
the number of times an ad is presented to you).

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CREATE PROFILES FOR PERSONALISED ADVERTISING

Information about your activity on this service (such as forms you submit,
content you look at) can be stored and combined with other information about you
(for example, information from your previous activity on this service and other
websites or apps) or similar users. This is then used to build or improve a
profile about you (that might include possible interests and personal aspects).
Your profile can be used (also later) to present advertising that appears more
relevant based on your possible interests by this and other entities.

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USE PROFILES TO SELECT PERSONALISED ADVERTISING

Advertising presented to you on this service can be based on your advertising
profiles, which can reflect your activity on this service or other websites or
apps (like the forms you submit, content you look at), possible interests and
personal aspects.

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MEASURE ADVERTISING PERFORMANCE

Information regarding which advertising is presented to you and how you interact
with it can be used to determine how well an advert has worked for you or other
users and whether the goals of the advertising were reached. For instance,
whether you saw an ad, whether you clicked on it, whether it led you to buy a
product or visit a website, etc. This is very helpful to understand the
relevance of advertising campaigns.

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UNDERSTAND AUDIENCES THROUGH STATISTICS OR COMBINATIONS OF DATA FROM DIFFERENT
SOURCES

Reports can be generated based on the combination of data sets (like user
profiles, statistics, market research, analytics data) regarding your
interactions and those of other users with advertising or (non-advertising)
content to identify common characteristics (for instance, to determine which
target audiences are more receptive to an ad campaign or to certain contents).

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DEVELOP AND IMPROVE SERVICES

Information about your activity on this service, such as your interaction with
ads or content, can be very helpful to improve products and services and to
build new products and services based on user interactions, the type of
audience, etc. This specific purpose does not include the development or
improvement of user profiles and identifiers.

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ENSURE SECURITY, PREVENT AND DETECT FRAUD, AND FIX ERRORS

help_outline

Your data can be used to monitor for and prevent unusual and possibly fraudulent
activity (for example, regarding advertising, ad clicks by bots), and ensure
systems and processes work properly and securely. It can also be used to correct
any problems you, the publisher or the advertiser may encounter in the delivery
of content and ads and in your interaction with them.

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DELIVER AND PRESENT ADVERTISING AND CONTENT

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Certain information (like an IP address or device capabilities) is used to
ensure the technical compatibility of the content or advertising, and to
facilitate the transmission of the content or ad to your device.

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MATCH AND COMBINE DATA FROM OTHER DATA SOURCES

help_outline

Information about your activity on this service may be matched and combined with
other information relating to you and originating from various sources (for
instance your activity on a separate online service, your use of a loyalty card
in-store, or your answers to a survey), in support of the purposes explained in
this notice.

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LINK DIFFERENT DEVICES

help_outline

In support of the purposes explained in this notice, your device might be
considered as likely linked to other devices that belong to you or your
household (for instance because you are logged in to the same service on both
your phone and your computer, or because you may use the same Internet
connection on both devices).

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You can choose your data preferences. This site or app wants your permission to
do the following:

Site or app


MEASURE CONTENT PERFORMANCE

Information regarding which content is presented to you and how you interact
with it can be used to determine whether the (non-advertising) content e.g.
reached its intended audience and matched your interests. For instance, whether
you read an article, watch a video, listen to a podcast or look at a product
description, how long you spent on this service and the web pages you visit etc.
This is very helpful to understand the relevance of (non-advertising) content
that is shown to you.

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Legitimate interesthelp_outline


DEVELOP AND IMPROVE SERVICES

Information about your activity on this service, such as your interaction with
ads or content, can be very helpful to improve products and services and to
build new products and services based on user interactions, the type of
audience, etc. This specific purpose does not include the development or
improvement of user profiles and identifiers.

View details
Legitimate interesthelp_outline


USE LIMITED DATA TO SELECT CONTENT

Content presented to you on this service can be based on limited data, such as
the website or app you are using, your non-precise location, your device type,
or which content you are (or have been) interacting with (for example, to limit
the number of times a video or an article is presented to you).

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CONFIRM OUR VENDORS

Vendors can use your data to provide services. Declining a vendor can stop them
from using the data you shared.

TCF vendors

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GOOGLE ADVERTISING PRODUCTS

Cookie duration: 396 (days).

Data collected and processed: Authentication-derived identifiers, Device
identifiers, Device characteristics, Browsing and interaction data, Non-precise
location data, IP addresses, User-provided data, Privacy choices, Users’
profiles

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Uses other forms of storage.


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