10 A Proposal for Protecting Low-Income Workers from Monopsony and Collusion
government can bring such suits, and has in a few cases, it
faces a similar problem of limited resources and high risk. In
contrast, product-market antitrust claims are oen brought
by large rms that are harmed by the alleged anticompetitive
practices.
Non-Compete Agreements
Common Law
In the common law, courts make an exception to the principle
of freedom of contract and refuse to enforce non-compete
agreements that are “unreasonable.”
10
To determine whether
a non-compete clause is unreasonable, a court typically asks
whether the clause is broader than necessary to protect the
employer’s legitimate business interest. Accordingly, a court
might determine that the geographic scope of a non-compete
clause is too broad if the employee works in a much smaller
area, or the industry scope is too broad if not all employers
within the designated industry actually compete with the
employer in question.
Employers usually argue that the clause is needed to protect
trade secrets, such as client lists, or to protect their investment
in the employee, who may have received training. e worry
is that if employees are permitted to work for rivals of their
employers, then they will be able to transfer information to
those rivals, which would discourage employers from sharing
information with employees, force them to use elaborate
rewalls and other protections, or refuse to invest in trade
secrets in the rst place. Employers might also underinvest in
their employees if employees can take their new skills to rivals.
While the courts’ approach to non-compete agreements
may provide some protection to low-income workers, it is
plainly inadequate. First, employees frequently do not read
or understand employment agreements because they are long
and complex, and the workers do not have the means to hire
a lawyer to interpret the contract for them. Poorly educated
workers who can command only low wages are at a greater-
than-usual disadvantage. In some cases, employees may be
rst informed of the non-compete clause aer they begin work
or when they quit. Second, the remedy for an unreasonable
non-compete clause is generally either nonenforcement or
reformation of the clause so that it is less broad; the employer
is not penalized or forced to pay damages to the employee.
is means that employees threatened with a lawsuit if they
try to work for a rival rm will not be able to attract a lawyer
to defend them. Lawyers must be paid, and low-wage workers
cannot aord to pay lawyers; since they will not receive
damages, lawyers cannot be paid out of any recovery. Given
the frequency of the practice, employers appear to understand
that they face no sanction if they insert unenforceable non-
compete clauses in contracts even if the clauses enable the
employers to intimidate the employees. Finally, because of
the vagueness of the legal standard that governs non-compete
clauses, it is always possible that an employee will lose a case.
is will further deter an employee from seeking legal relief,
and a lawyer from helping him or her.
Another problem with the common law approach to
noncompetition agreements is that these agreements might
have signicant anticompetitive eects even when they
are permissible. Imagine that a monopsonistic employer
requires all employees to sign non-competes as a condition of
employment. e non-competes may be deemed reasonable
under the common law because of their limited scope and
duration, but nonetheless deter other employers from entering
the market for labor because they fear that they will not be
able to nd enough employees to run their businesses. From
a social standpoint, it may be optimal to prohibit such non-
competes because of their collective anticompetitive eect
even though they are individually reasonable.
Legislation
In most states, non-compete agreements are mainly governed
by the common law only. But in California, North Dakota, and
Oklahoma, non-competes are generally prohibited by statute.
11
In recent years several state legislatures, including those of
Hawaii, New Mexico, Oregon, and Utah, have considered or
passed legislation that puts limits on non-competes (Lohr
2016). Notably, in 2016 Illinois passed a law banning non-
competes for low-wage workers, dened as those who earn no
more than $13 per hour or the relevant legal minimum wage,
whichever is higher.
12
Maine, Maryland, Massachusetts, and New Hampshire are
currently considering legislation to restrict non-compete
clauses, particularly with respect to low-wage workers (Beck
2017; Quinton 2017). e bills vary greatly, but some of
them entail fairly sweeping changes. For example, one bill
being considered in Massachusetts tightens the common law
analysis of all non-compete agreements, while also prohibiting
their use for low-wage workers (nonexempt workers under
the Fair Labor Standards Act, who are lower-income and
paid on a wage basis). For all non-competes, the bill requires
employers to give workers notice of non-competes, to supply
additional consideration when non-competes are created aer
employment begins, to review the agreement with the worker
every three years, and to notify the worker of the agreement
at termination. It also tightens the common law limits on
duration, geographic scope, and industry scope.
13
Going in
the other direction, Idaho recently passed a law that makes
it more dicult for employees to challenge a non-compete
(Dougherty 2017b).
Overall, the legal regime is insucient to address the antitrust
problems posed by non-competes for several reasons. First,
the common law and much of the statutory law do not
address problems of market power in an adequate way. When