Education & Workforce

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Banning Noncompete Agreements to Create Competitive Job Markets

01.22.21 | 13 min read | Text by Mark Lemley & Orly Lobel

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Competitive job markets are critical to the success of the national economy, spurring innovation while boosting wages and labor equality. The moment is ripe for the new administration to foster competitive job markets by banning noncompete agreements (noncompetes). New empirical evidence shows that noncompetes have harmful effects on job mobility, wages, competition, entrepreneurship, and equality. Yet noncompetes are widely included in employment contracts. And inconsistent state rules on noncompetes (and their enforcement) have led to employee confusion and disputes among state courts.

A tough, consistent federal strategy to eliminate noncompetes is needed. Several recent federal and state initiatives addressing noncompetes have created momentum that the new administration can build on to rapidly address this issue. The Biden-Harris administration should (1) adopt a federal ban on noncompetes, (2) actively educate the public about their labor-mobility rights (and actively support those rights), and (3) take proactive steps to ensure compliance with labor-mobility policy. Specific steps the new administration could consider include:

• Barring noncompete agreements through legislation or executive order. If barring all noncompetes is not yet feasible, a federal ban on noncompetes imposed on low-wage and unskilled workers would be a good first step.
• Issuing executive orders that (i) restrict or eliminate government contracting with companies that use noncompetes; and (ii) require employers in states that restrict noncompetes not to sign noncompetes with employees in those states, and/or to give prominent notice of the unenforceability of noncompetes in those states.
• Requiring employment contracts to include a notice about employees’ right to leave their employer.
• Banning secrecy imposed by employers regarding salary information.
• Requiring the Department of Labor, Federal Trade Commission, and Department of Justice Antitrust Division to collaborate to actively enforce laws and policies governing noncompetes nationwide.

Challenge and Opportunity

Noncompetes Hurt Workers and the Economy

Noncompete agreements are contracts that prohibit employees from working for or becoming a competitor for a certain period of time. By restricting employees from switching employers or starting their own competing businesses, noncompetes have harmful economic effects. They depress wages, reduce entrepreneurship, and impede efforts to correct inequities in labor markets. In the past decade, a wealth of research—including diverse empirical, experimental, and theoretical studies—have revealed the adverse effects of noncompete contracts and similar restrictions on the free movement of human capital. As a 2018 article states, “policymakers, economists, and legal scholars…overwhelmingly conclude that the harms of noncompetes far outweigh their potential benefits.” The research shows that lifting noncompete restrictions—thereby increasing job mobility—is good for entrepreneurship, wages, industry and regional economic growth, and equality.

Entrepreneurship

Increased enforcement of noncompetes favors large, incumbent firms. Studies find that markets become more concentrated when noncompetes are adopted and enforced. When employees sign noncompetes with established firms, start-up companies have difficulty recruiting talent. Indeed, a ban on noncompetes in California generated greater and faster innovation because employees with good ideas that their employer did not want to use were able to take those ideas elsewhere.

Wages

Noncompetes decrease wages. Employers calibrate compensation largely based on competing external offers. When external offers are reduced, employers face less pressure to increase wages. In 2015, Hawaii passed a law banning noncompete and non-solicitation clauses from employment contracts in the high-tech industry. A recent study found that Hawaii ban increased employee mobility in the high-tech sector by 11% and increased new-hire salaries by 4%. Noncompetes even decrease wages for employees who have not signed them. In a market that enforces noncompetes, wages and mobility are lower for everyone, including those not directly bound by noncompetes. These impacts can last a long time. A 2017 study found that post-employment restrictions have persistent wage-suppressing effects that last throughout a worker’s job and employment history. 

Equality

Restrictions on job mobility have a disproportionate negative effect on certain demographics. In job markets, discovering one is competitive depends on the frequency with which one is exposed to information about one’s comparative options in the market. In job markets where workers don’t often move from job to job, the “price” of labor (i.e., the terms and conditions of an employee’s contract) will lag behind an employee’s true market value. If an employee discovers their undervalued labor compensation by receiving an external (better) offer from a competitor employer, the employee can use that information to negotiate a higher salary with their current employer. If the current employer offers to match the higher salary, the competitor employer can come back with an even higher offer. This process continues until one employer backs down, leaving the employee better and more fairly compensated as a result.

The existence of noncompetes cause this process to break down by taking away employee bargaining power. Noncompetes harm equality in several ways as a result. First, noncompetes exacerbate the gender pay gap. Women are more likely to have geographic constraints based on family and spousal obligations. Noncompetes that restricts employee capacity to compete within a region therefore disproportionately hurt woman. Second, taking away employee capacity to entertain outside offers can cause historical pay gaps to persist or widen. Employees cannot discover their true value without external offers. The more external offers are available, the more equity norms and competitive pressures from mobility drive employers to raise wages as retention efforts. Third, white women and people of color are more likely to have non-monetary preferences for a workplace that is free of discrimination and hostility and that values diversity. For example, if a woman discovers that her employer systematically allows harassment of its female employees, she will have a strong interest in examining other opportunities in the market. A noncompete restricting her mobility will prevent her from escaping the discriminatory workplace.

Noncompetes are on the Rise

The use of noncompetes is on the rise in the United States. Employment agreements routinely prohibit workers from accepting a competitor’s job offer, and/or from working in a competing business for a specified period in a certain geographic area. The Treasury Department recently estimated that nearly 30 million workers are bound by noncompete provisions. A study of executive employment contracts found that 70% of the firms investigated imposed noncompetes on their top employees. A forthcoming 2021 study found that noncompetes are also common for non-executive employees with base salaries below $100,000 per year. A 2019 report noted that “the use of noncompetes is so pervasive that even volunteers in non-profit organizations, in states that do not even enforce them, are asked to sign away their post-employment freedom.”

Workers currently have limited recourse when it comes to contesting noncompetes. Court decisions in cases involving noncompetes are highly unpredictable, and litigation can be prohibitively expensive and burdensome for individual employees. Some states—recently including Massachusetts, Washington, Maryland, and New Hampshire—have passed laws voiding most noncompetes, but this state-specific legislative patchwork can be difficult for workers to understand. Many employees, especially those outside the professional class, end up complying with noncompetes even if they aren’t enforceable in the state in which they work (or are planning to move for a new job). Moreover, more and more people are employed at companies with a national presence. Such companies often demand adherence to a noncompete nationwide, even for employees in a state that won’t enforce noncompetes. Inconsistent state rules have also led to conflicts across state lines when an employee bound by a noncompete moves to a state that doesn’t enforce them. This has resulted in a “race to the courthouse” when employees change jobs, as each side tries to get its own state law to apply. It has even led to the unseemly spectacle of courts in different states attempting to prohibit each other from enforcing their respective state policies. Finally, the complex legal landscape surrounding noncompetes further entrenches established companies. Companies with substantial legal and financial resources can be more aggressive in using noncompetes to drive out competition even when their legal claims are on weak grounds. Incumbents may even use a reputation for suing employees who leave as a strategy to deter other employees from leaving.

National Leadership is Needed

Noncompetes aren’t just bad for workers, but for our economy and society as a whole. We do better when workers can easily move between jobs. Increased mobility makes it easier for employees to find employers that most value their skills, and for employers to find employees who are good fits. But without guaranteed labor mobility, the anti-competitive impulses of individual firms create a collective-action problem. Smart policy is needed to ensure everyone benefits from a continuous, high-quality, and flexible labor pool over time. The problem of noncompetes is not a problem that can be solved by states on their own. National leadership is needed. Several federal bills limiting the use of noncompetes (either entirely or just for low-wage workers) have already been drafted. The White House issued a Call for Action in 2016 urging states to limit the use of post-employment restrictions. Also in 2016, the U.S. Treasury Department issued a report on noncompetes warning that when noncompetes are enforced, “innovations spread more slowly, possibly inhibiting the development of industrial clusters like Silicon Valley.” In 2020, the Federal Trade Commission convened a meeting to consider a rule prohibiting noncompete clauses. But so far the FTC has taken no action.

The Biden-Harris Administration can build on this momentum to eliminate noncompetes in the United States once and for all.

Plan of Action

To support talent mobility and enhance human capital, the Biden-Harris Administration should (1) adopt a federal ban on noncompetes, (2) actively educate the public about their labormobility rights (and actively support those rights), and (3) take proactive steps to ensure compliance with labor-mobility policy. Below, we recommend specific steps that the new administration could take towards these goals.

Adopt a Federal Ban on Noncompetes

A federal ban on noncompetes could potentially be achieved by a Federal Trade Commission (FTC) rule barring noncompetes, action through the Department of Justice (DOJ), an executive order, and/or legislation. If barring all noncompetes is not yet politically feasible, targeting noncompetes imposed on low-wage and unskilled workers would be a good first step. 

FTC rule/DOJ action

The FTC and the DOJ’s Antitrust Division have only recently started to consider anti-competitive practices in the labor market to be within their scope of regulating competition and unfair trade practices. The FTC could use its regulatory power under Section 5 of the FTC Act’s prohibition on “unfair methods of competition” to issue a federal rule to ban noncompetes nationwide in appropriate circumstances, such as concentrated markets. The FTC could enforce this rule by bringing action against employers who use, or seek to use, noncompetes to restrict employee mobility in ways that interferes with competition. 

Moreover, California’s Section 16600 and Section 1 of the federal Sherman Act share the language of prohibiting contracts “in restraint of trade.” The California law has been consistently interpreted to ban employment noncompetes. Using this interpretation as precedent, the DOJ could leverage the language in Section 1 of the Sherman Act to ban employment noncompetes nationwide in appropriate circumstances, such as in concentrated markets.

Executive Order

The Biden-Harris administration can also issue executive orders that (1) restrict or eliminate government contracting with companies that employ noncompetes; (2) require employers in states that restrict noncompetes not to sign them with employees in those states, and/or to give prominent notice of the unenforceability of noncompetes in those states.

Legislation

Two recently proposed federal bills propose legislative solutions to the problem of noncompetes. The Workforce Mobility Act proposed in 2018 would prohibit and prevent enforcement of noncompetes for employees who “engage in commerce or in the production of goods for commerce.” Under the proposed bill, employers would be fined for each employee subject to a violation of this law, or for each week the employer was in violation. The House version of the bill goes further, specifically stating that noncompetes may violate antitrust laws.

The Mobility and Opportunity for Vulnerable Employees (MOVE) Act of 2015—proposes a full or partial ban on noncompetes, in addition to barring noncompete agreements entirely for low-wage workers. The bill would also require companies to notify job applicants ahead of time if they would be asked to sign a noncompete if hired.

The new administration could work with Congress to revive and pass one or both of these bills. Any federal bill governing noncompetes should also grant employees a private right of action for damages if they are asked to sign an overly broad noncompete agreement.

Actively Support and Publicize Labor-Mobility Rights

Even in states that ban noncompetes, a significant number of employers still require employees to sign them. For example, employers in California—a state that bans noncompetes—insert noncompetes into their employment contracts at rates similar to non-California employers. Because employees in these states may not be aware that noncompetes are illegal, unlawful noncompetes can have a significant deterrent effect on employee mobility. The administration should act to educate the public about their labor-mobility rights, and to crack down on employers unlawfully promulgating noncompetes. The Biden-Harris administration should issue an executive order directing the Department of Labor, FTC, and the DOJ Antitrust Division to collaborate to actively enforce existing labor-mobility laws, and to pursue some or all of the actions below.

Require “right-to-leave” notice in employment contracts

The Biden-Harris Administration should require employment contracts to include a notice about employees’ right to leave their employer. The Defend Trade Secrets Act (DTSA), enacted by Congress in 2016, provides a model for this type of mandatory notice. The DTSA gives employees immunity from criminal or civil liability for reporting illegalities at a company even if reporting reveals trade secrets. The DTSA requires employers to include notice of this immunity in “in any contract or agreement with an employee that governs the use of a trade secret or other confidential information.” Similarly, the Federal Government should require employment contracts to include a clause about the rights of an employee to compete with their previous employer after leaving a job. This clause should be required for all contracts in states that ban noncompetes post-employment. If a federal noncompete ban is enacted, it should apply nationwide. The Federal Government could further promote market competition by amending the DTSA to include a notice on the limits of trade secrets explaining that general know-how and information that is readily ascertainable from public searches cannot be deemed secret and proprietary.

Enforce mobility rights beyond formal noncompetes

In employment contracts, restrictive covenants do not simply appear as a formally labeled “noncompete clause”. Employment contracts regularly include other restrictive provisions such as requirements for non-solicitation of customers and coworkers, pre-innovation assignment agreements, nondisclosure agreements, and non-disparagement clauses. Restrictions like these impose harms similar to noncompete clauses: preventing employee mobility, slowing innovation, stifling start-ups, and concentrating industries. Customer non-solicitation requirements in particular effectively function as noncompetes “because a business without clients is like a pool without water.” Coworker non-solicitation clauses essentially reduce the job opportunities of every former co-worker that the employee in question knows, regardless of whether those coworkers agreed to be part of a restrictive regime. Nondisclosure agreements, theoretically designed to protect trade secrets, are often structured to include not just proprietary knowledge, but also readily ascertainable knowledge about customers and coworkers. The knowledge that a departed employee would use to solicit a former coworker—knowledge pertaining to a person’s skills, talent, personality, experience, and salary—is not an employer’s trade secret and should not be restricted by contract. California courts have recently recognized that employee non-solicitation clauses comprise unlawful restraints on trade under Section 16600. The new administration can build on precedent set in California to control proliferation of overly restrictive provisions in employment contracts nationwide.

Ban salary secrecy

The ability to reveal one’s salary to co-workers and others in the industry is protected by both federal and state law. The National Labor Relations Board (NLRB) holds that prohibiting any employee—unionized or not—from discussing salaries violates their rights under the National Labor Relations Act to engage in concerted activity for mutual aid. The NLRB has specifically ruled that confidentiality agreements are invalid when they contain provisions that “prohibit employees from disclosing certain personnel information unless authorized by the Company.” Many state laws also make it illegal for any employer to prohibit pay discussions among employees. Digital platforms such as LinkedIn, Glassdoor, Salary.com, and SalaryExpert make compensation information easily searchable. Yet employers have attempted to claim that use of salary knowledge in recruitment efforts by a former employee of a co-worker can amount to a breach of a nondisclosure agreement. The administration should extend the NLRB rule beyond the context of labor unions, banning salary secrecy.

Ensure Compliance with Labor-Mobility Policy

As discussed above, litigation alone cannot address the widespread use of noncompete clauses. Employees often lack the money, time, expertise, or will needed to challenge a noncompete in court. The Federal Government must instead be proactive in understanding the effects that common employer practices and provisions have on labor mobility. Several state attorneys general have taken such a proactive stance. Illinois and New York in particular have recently investigated employers who required their employees to sign unenforceable contracts. These states used consumer laws worded similarly to the federal FTC Act as bases for prosecution. For example, Illinois’s Consumer Fraud and Deceptive Business Practices Act prohibits “unfair methods of competition and unfair or deceptive acts or practices.” The state attorney general’s office explains that: “An ‘unfair practice’ is one that (1) offends public policy as established by statute, common law or otherwise, (2) is immoral, unethical, oppressive, or unscrupulous, or (3) causes substantial injury to consumers. A non-compete that violates existing common law or statutory restrictions could satisfy each prong of this test, creating a cause of action in states with similar consumer protection statutes or strong unfair competition laws.”80 The Department of Labor and the FTC should collaborate on investigating employers who require their employees to sign unjustifiable noncompetes, using the FTC Act as grounds for investigation.

Conclusion 

The modern economy depends on employee mobility. Our workforce needs to be able to respond to sudden disruptions like COVID-19, which radically shifted demand for workers, and to longer-term geographic and economic trends. Employees should have the freedom to take the jobs that are best for them, or to start new companies if they have innovative ideas that otherwise will never see the light of day. 

Unfortunately, companies are too often able to prevent employees from leaving, either because the law permits it in many states or because employees don’t know their rights. This control depresses wages and employee initiative. It reduces innovation and the adoption of new technologies. And it keeps people stuck in dead-end jobs when they have better alternatives available to them. The current hodgepodge of state laws and the threat of enforcement of a noncompete means that even states that ban noncompetes can’t get the full benefit of the protections they provide to their workers and innovators. It is time for the Federal Government to step in.