The tyranny of "non-compete" clauses is ending, maybe?

[Maxmars]

((IN RED))

One of the areas I see these clauses used quite frequently is in government work, so I have kind of mixed emotions about this.  I'll try to explain.  ...

What will happen is one government contractor will have a person working for them and over time they develop a needed skill set.  Then another contractor will try to lure that person away offering better pay. 

"Luring the person away from their current employment..."  Or alternatively, the employee is not satisfied with their employment situation.  In either of those two possibilities, the employee (and their freedom to decide) is the crux of the agreement.  Once the relationship is severed, the employee and employer are two separate entities, unbound from each other... employers want that bond continued.  They offer as justification the potential for their own economic harm.  They want legal remedy to prevent, and or punish should harm come.  They want "insurance."

The price of that insurance is a document that stands as a threat.  Particularly, a threat against the employee.  That threat is made under a presumption of potential malfeasance.  Malfeasance which clearly does not exist at the time of signing (which is interesting, and almost similar to a non-disclosure agreement.) But this threat eclipses the employees' market viability, any future endeavors, and even employability - unilaterally based upon the employers' legal constructs.  A very powerful legal construct, considering their is no reciprocation of commitment or any notional value to the employee.

The economics of the situation is entirely incidental.  Practices in government employment as "contracts" are completely a construct of the regulators and their 'interests' within government negotiations.  Competition for employment is lauded when it means better profitability, but anathema when it cuts into profits... unless the employee represents some unspoken political connection, or utterly unique skill.  The travesty of mechanical 'multipliers' are an effect of - not a reason for - the commercial reality.

Insofar as chronic "job hopping," I can see very few people outside of niche employment who can do so.  Non-disclosure can be seen as warranted in those cases, but pretending that all cases offer that risk seems disingenuously cynical.. as if every employee naturally was just itching for a chance to bail for more benefits or money.  Rather than foster an 'attractive' employment situation, they put up an economic barbed-wire fence hamstringing employment mobility... because they don't want to compete at the cost of profits.  The 1099 construct was imposed to benefit employers, not employees.  The idea was to facilitate employment without investment.  To limit to the cost of employment, not to raise wages.

I disagree that the idea is to "spot" job hoppers, instead it is to "spot" bad employers who risk employment 'value' for profit.  Or employers who leverage post employment restrictions against employee satisfaction.  This is more germane to leadership in tech jobs of course, where soft skills determine value.  The risk was always there, and damages from employee abuse are seldom specified, only much decried.  That it is a difficult situation is hardly justification for purposefully crippling the future of anyone who dares work for you.

Federal acts like Davis-Bacon regulate wages for trades personnel, but there isn't any such act for professional personnel so the sky is the limit.

Perhaps, legislation is in order for that 'professional' level employee... but I doubt the industries most affected will never support them.  They thrive with the 'unrestricted freedom' to impose rules on employees as they see fit.  An entire industry of lobbyists and HR people are vested in the status quo forever.

Similar things also happen for actual government employees.  They'll work for a government for all their training, and then leave and go to work for a contractor at 4x-5x their original salary.  And the kicker is, the employee is maybe only making 120% of their original salary while the contractor pockets the extra 280% to 380%.  1099's can leverage some of this back, but never more than about 40%.

It's always about profit.  Disclosure would remedy that in negotiations, but it rarely happens... at least I've never seen data to that effect.  

Us taxpayers wind up paying for ALL of these gymnastics because the government doesn't have any money of its own.

Agreed.  Because that is "the government teat"... the very reason political appointments are soooo valuable to the appointee and his or her 'sponsors.'  Contracts became the latest venue for unaccountable abuse and siphoning of public dollars... with a politician smile and a businessman wink.

It's a complicated and frustrating game.  Unfortunately, I work in this world and it can be really frustrating.

I get it.  You work with what you've got.  But the non-complete clause isn't a 'form' of practice, it's a 'practice' of form.  It needs review, from soup to nuts... unfortunately lobbyist dollars (their freedom of speech) have more value than the lowly employee... who ends up forever beholden to employers that couldn't compete for the need for an employee and don't care about loyalty and retention beyond how much they profit in the deal.  The employee (an actual 'producer') is reduced by accounting as a 'burden' on the business...  how ironic is that?

In any case, as you note, these non-compete clauses are generally unenforceable.  This doesn't stop them from being used though, even if only as a scare tactic.

Actually the FTC was of the opinion that non-compete clauses are unenforceable; my contention is that they are like handing a weapon to employer while placing the employee in the role of supplicant, or subject, of their edicts.

I don't believe that such agreements are totally out of place in reality (they may be necessary in some cases... like for known "job hoppers.") I just think that the 'reality' must be defined outside of what the employee has to lose, or how the employee is eclipsed or diminished in potential.  What exactly is the business end of this agreement... a job?  It's no wonder they hit this obstacle... some businessfolks thought they could simply 'have their way" and no one would ever dare question it?

There is a larger issue here... that issue has to be defined to include the employee outcomes... not solely profitability nightmares for businesses.

(Too many words?   )