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U.S. moves to bar noncompete agreements in labor contracts

nytimes.com

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Re: U.S. moves to bar noncompete agreements in labor contracts

#441
post #381
post #354

Earlier quoted context omitted.

1. Shifting profits from the entrepreneur (with skin in the game of providing consumer wants) to the middleman can be deadweight. You'd want some evidence that rewarding disloyal middlemen results in we the consumer surplus, not just a flourishing middle-man economy. There can be price-discovery benefits to middlemen, like market makers at the NYSE. But the financial markets usually involve fungible goods. Consumers…

Good points! Let me try to dissect them, let me know what you think. 1. I agree with the themes of not paying disloyal middlemen, but I'm not sure if it applies to the example. > You'd want some evidence that rewarding disloyal middlemen results in we the consumer surplus, If entrepreneur Y is willing to pay 2x the salary of entrepreneur X for the same employee, presumably its because Y thinks they can use the salesp…

1. > "presumably it's because Y thinks they can use the salesperson's relationships (at least) twice as productively."

I'm not sure that's true. Y thinks Y having the profits from S's relationships are worth the marginal cost of paying 2 x $X (the salary). Presumably, he could offer that to S's Boss -- but the angle is that S will usually sell out for less. S has less skin in the game.

As you note, it's hard to tell how much S is actually benefitting consumers, versus how much they're trying to extract rent once they've got Boss over a barrel. And it seems the best time to solve that is with a voluntary agreement between consenting adults before Salesman has Boss over a barrel.

If Boss runs the risk of being gutted by S, the usual response is to raise prices, or conclude that it's just too expensive to make this good. So probably consumer prices rise under this regime. Now, maybe if you're the party of middle management, that's a political good!

2. I don't know enough about that to BS beyond what I've BS'd already. But it strikes me as mostly a toss up -- sometimes it's good, sometimes it's bad. And, again, I think the libertarians are mostly right about respecting deals between consenting adults, even when there's a wealth or social gap. The parties will have a much better idea about when they're good and bad. I'm not sure why you'd outlaw them.

I guess the best argument I have against myself is that California has already done something similar for awhile, and it hasn't crippled their market for talent. So whatever effect I might be worried about, it's de minimus, and it seems to be a morale booster for middle-management types.

Re: U.S. moves to bar noncompete agreements in labor contracts

#442

Does anyone know if this would retro-actively applied to employees who signed the non-compete contracts?

Yes, from the FTC press release [0]:

The proposed rule would apply to independent contractors and anyone who works for an employer, whether paid or unpaid. It would also require employers to rescind existing noncompetes and actively inform workers that they are no longer in effect.

[0] https://www.ftc.gov/news-events/news/press-releases/2023/01/...

Re: U.S. moves to bar noncompete agreements in labor contracts

#443

Earlier quoted context omitted.

Even that seems too much in favor of non-competes. Instead it should simply be treated like another job that I can quit at-will. If you don't want me to work for a competitor, pay me some amount of money we negotiate like a salary. It's up to you if you think it's worth enough to pay me not to work, and me to be paid enough not to advance my career how I choose during that time.

Agreed, but how is that different from what the person you replied to said? I assume they can't pay someone for their silence against their will. Or maybe I'm wrong.

If non-competes are enforceable by the German style listed above, the employee forced silent by the non-compete, even after they are done working, but the company is also forced to pay them.

However, in that case, the company has two options: Forced non-compete with whatever percentage of salary is forced by law, or don't do a non-compete at all. While the employee has only one option: Whatever the employer chooses. Similar to most of the US (barring a few states) except US employees don't even get compensated.

Meanwhile, if employees aren't forced to accept non-competes, the employee and employer can work out a deal or not. Given that as far as I know, California employers don't regularly pay people their TC not to work after they quit, it seems that non-competes are more of a threat against employees than something actually necessary to prevent trade secrets or whatever.

Although even outside of California, I don't know anyone personally who had a non-compete enforced after quitting a job (unless this happened and they didn't tell me).

Re: U.S. moves to bar noncompete agreements in labor contracts

#444

Earlier quoted context omitted.

Why shouldn't Congress be able to delegate powers? Congress writes the laws and it seems appropriate that they should be able to write a law that allows a group they delegate to write and enforce regulations on their behalf. Especially when the scope of such laws is so narrowly and explicitly defined. Do you really expect Congresspeople to have the educational background necessary to regulate agricultural products, a…

Yes, I do expect Congress to either build up that expertise, or hire their own staff yo do the footwork for them. The Library of Congress, in point of fact, was established to fulfill that very need. Congressional research. Also, until Gingrich in the 104th-ish Congress convinced them to shut it down in the 90's, the Legislative branch had their own independent Office of Technology Assessment research arm which to my…

Delegation is essential. There simply isn't enough time to regulate all the various industries that need regulation. Unless you want congress to read even less of what they pass than they do today. Congress can always override regulations that go too far or not far enough.

Re: U.S. moves to bar noncompete agreements in labor contracts

#445

Non-Competes being legal is only acceptable I think if the worker will continued being paid for the period of the non-compete. I can see reasons that non-competes exist, but those reasons don't really make sense in a world where patents and trademarks also exist. The fact that they are essentially illegal in California, and California's economy works shows that they are unnecessary and also don't hinder technological…

But even that has major drawbacks -- if you're not actually working, then you're not building your resume, you're not getting promotions, you're not advancing. And if you find your work meaningful and satisfying, that meaning and satisfaction is gone. Not to mention who determines how much "being paid" means, when compensation isn't just base salary but also variable things like company bonuses, individual performanc…

You are also not making a higher salary you would have made at the competitor depressing tax revenue and wages (especially until that minimum profits tax passed companies were paying 0% income taxes anyway).

The trade secret argument the poster above you alluded to is very unlikely. Usually a competitor is hiring you because you are already somewhat trained and up to speed in their field... and perhaps the competitor can slow your company's operations by hiring you away.

In the end, many companies only pay you what they have to keep their operations stable and feel more than free to pay the very top of management more than what they deserve, and keep those executive compensations while laying off people in operations quite freely when times are bad. Noncompetes only for the company, not the worker, during good times.

Re: U.S. moves to bar noncompete agreements in labor contracts

#446

When I was interviewing last year, I cut off an interview loop with a company primarily because I don't reside in California and their NDA was, "Anything you say, anything we say, forever." Since I was also interviewing with one of their direct competitors that I really preferred, I didn't want to put myself anywhere near a legal situation where they might try to mess things up for my career. They freaked out when I…

The thing that makes me so angry is how lightly so many people treat these legally binding contracts. I showed up to a meetup at some tech company's offices. After putting in my name, I was shown a contract on a small tablet and was expected to click next and sign with my finger. I have normal vision and couldn't read it without putting it right in front of my eyeball. I don't sign anything without reading. I asked i…

> "Oh, that's just all standard legal stuff, don't worry about it."

Oh good so it's no big deal if we just skip it

Re: U.S. moves to bar noncompete agreements in labor contracts

#447
post #101

I think noncompete clauses have their uses so rather than see them eliminated completely you make a company pay the employee under a noncompete the equivalent salary for the duration. Company wants you to sign a noncompete for five years after you leave? They can pay for you five more years. Companies that truly need the protections will shell out for it. The ones that include it in their employment contracts because…

Garden leave isn't a panacea. For example, in Massachusetts, there's a relatively recent requirement that employers have to pay at least half of an ex-employee's salary for up to a 12 month non-compete coverage. Better than nothing I guess. And it does put some skin in the game for the employer. But while that might look like a good deal for some people who are in a position to just travel, start a project of some so…

But in MA, the "reform" doesn't apply to existing employment contracts, only ones signed after it went into effect.

The MA law was watered down after some lobbying by large Hopkinton MA based company(s) that had taken A.I.M. at non-compete reform in the state. In fact the reforms that did pass, I think only did after of a certain acquisition that occurred involving said company(s).

https://www.telegram.com/story/business/columns/2016/07/10/p...

https://aimnet.org/non-compete-agreements-protect-innovation...

Re: U.S. moves to bar noncompete agreements in labor contracts

#448
I think noncompoetes should be bound on income as in:

- illegal if your income isn't majorly above the average (like 50+% above)

- in situation where legal bound in maximal time by a combination of how much your income is above average and how long you worked for the company before you stopped doing so

- in no situation should it be longer then 1 year

- in no situation should it be longer then half the time you worked for a company

Re: U.S. moves to bar noncompete agreements in labor contracts

#449

Earlier quoted context omitted.

The thing that makes me so angry is how lightly so many people treat these legally binding contracts. I showed up to a meetup at some tech company's offices. After putting in my name, I was shown a contract on a small tablet and was expected to click next and sign with my finger. I have normal vision and couldn't read it without putting it right in front of my eyeball. I don't sign anything without reading. I asked i…

> "Oh, that's just all standard legal stuff, don't worry about it." Oh good so it's no big deal if we just skip it

Oh no, it's company policy you see. [Sign it, or else we'll sic our AI robot dogs onto your throat!!!] ;)

Re: U.S. moves to bar noncompete agreements in labor contracts

#450
post #407

Earlier quoted context omitted.

Their response? "Oh, that's just all standard legal stuff, don't worry about it." I'm a Canuck, so centuries of legal, common law separation here... But if someone misrepresents what a contract is, and even more so applies pressure to sign, it's meaningless. My understanding is that this goes back to "make your mark" and lower levels of literacy, and in modern times, that legalese is gibberish to many, thus misrepres…

Shouldn't this invalidate basically every software EULA/TOS?

In many jurisdictions much of the EULAs are unenforceable for this reason and others; they are effectively a set of false assertions about rights and prohibitions.
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