Backlash To Sandwich Noncompetes: Three States Propose Bills To Limit, Ban Noncompetes

After the world woke up and discovered a "secret" everyone who practices employment law already knew, that noncompete agreements are becoming so common even low-level employees like sandwich makers and dog groomers are being required to sign them to keep their jobs, four states are stepping up to change that. Whether the efforts will succeed is another story, but the discussion has finally begun.

Last year, Massachusetts engaged in a failed attempt to ban noncompete agreements because, as anyone with an economics degree can tell you, noncompetes are bad for economic development, especially in the tech sector. Efforts to pass legislation banning noncompetes in Massachusetts have redoubled and another bill is pending this year.

In Hawaii, a proposed bill would prohibit noncompete agreements in the tech sector. The state's Department of Education backs the legislation because it can't find enough qualified tech workers. "For employees of large consumer-oriented companies which do business with nearly everyone, a noncompete agreement tends to effectively eliminate nearly all viable options for employment within the state," the Superintendent of Education said in favor of the ban. "This encourages technology workers to move out of state to secure employment within their chosen field, thus reducing the available candidate pool to fill our most experienced positions."

A bill in New Mexico that would limit noncompete agreements with physicians has overwhelmingly passed in its Senate. New Mexico reports a physician shortage and they hope to alleviate it with this law.

On the flip side, abill getting the lots of press right now is the legislation to radically expand enforcement of noncompete agreements in Wisconsin. The legislation would have Wisconsin's pro-employee law on noncompetes turned into a horror show similar to the one we have right here in Florida. The bill includes gems like allowing employers to say, "sign or be fired" with no additional consideration than continued employment, barring courts from considering economic hardship on the employee, and allowing courts to rewrite the agreements in favor of employers. Even worse than Florida law, the courts won't be able to require employers to post a bond to protect employees from wrongfully issued injunctions.

So, while it looks like Jimmy Johns and its sandwich noncompetes has started a backlash against noncompetes in some states, in at least one Republicans are forging ahead to limit employee rights as much as they can while they can. Did they forget that employees are the very people who are also voters? Will voters in Wisconsin wake up? Will employees in Hawaii, New Mexico and Massachusetts push to regain their right to get a job (not to be confused with the Orwellian-named right to work laws, which are anti-employee laws)?

I'm glad Americans are finally talking about noncompete agreements. I hope voters will wake up in time to help themselves.

Is Incarceration The New Slavery? Does Cheap Labor Explain The U.S.'s High Incarceration Rates?

I was reading an article about Massachusetts inmates suing for minimum wage and it started me thinking. The U.S. has the highest incarceration rates in the world. We have about 2.2 million people in prison here. The shockingly high rates started a steep incline shortly after the passage of the Civil Rights Act of 1964. The Sentencing Project charts the incline:

Per the NAACP:

• African Americans now constitute nearly 1 million of the total 2.3 million incarcerated population
• African Americans are incarcerated at nearly six times the rate of whites
• Together, African American and Hispanics comprised 58% of all prisoners in 2008, even though African Americans and Hispanics make up approximately one quarter of the US population
• According to Unlocking America, if African American and Hispanics were incarcerated at the same rates of whites, today's prison and jail populations would decline by approximately 50%
• One in six black men had been incarcerated as of 2001. If current trends continue, one in three black males born today can expect to spend time in prison during his lifetime
• 1 in 100 African American women are in prison

The 13th Amendment has an exception to the abolition of slavery: “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” The effect of this exception is that prisoners who work can be paid $1.00 an hour while working for private, for-profit companies that contract with the prison system for cheap labor. Further, private for-profit companies that run prisons in this country can get free labor for profit.

Prisoners aren't covered by the Fair Labor Standards Act and can't unionize or bargain for better wages. 

Why reform our criminal justice system when the effect is to reinstate slavery and indentured servitude on 2.2 million Americans, most of whom are minorities? Corporations exploiting this system of free and ultra-cheap labor have every incentive to make sure nothing changes, and that our rates of imprisonment keep going up. 

Wanna bet that incarceration rates would drop drastically if prisoners had to be paid minimum wage for their work? Are any elected officials concerned enough about this to do anything to reform this awful situation?

Two First Amendment Rights, Only One Protected: Last Man Standing (Sort Of) Gets It Right

One of my guilty pleasures is watching Tim Allen's show Last Man Standing. Guilty because, unlike the very apolitical Home Improvement, Tim Allen uses his new vehicle to take some slaps at President Obama and liberals in general. In a recent episode, Three Sundays, they addressed two rights protected by the First Amendment, how these rights play out in the workplace, and sorta kinda got them right. However, they didn't explain why one right was protected and one wasn't so I will.

Free Speech: The first issue was the right to free expression. Ryan, the despised-because-he's-a-liberal father of Mike's (the Allen character's) grandchild, has a blog where he posts pictures and criticizes situations he finds on the road (where he's a trucker for a beer company), such as environmental issues and encroachments on Native American land. His company takes umbrage and demands he take down the blog. The problem? He's wearing his uniform in the pictures. Mike tells him it's the right choice to take down the photos. Ryan asks, "I thought you supported my right to free speech, Mike?" Mike responds, "I do, but I also support your company's right to tell you to stuff it."

Mike got it right. As I've said before, the First Amendment doesn't protect your right to free speech at work. People freaked out when I wrote about this in the context of Duck Dynasty. Fewer cared about Ozzie Guillen when he commented about his love for Fidel. Your employer can fire you if they don't like your speech at work. The one exception that's notable is that they can't fire you if you aren't a supervisor and are talking to coworkers or to management on behalf of coworkers about working conditions. Had Ryan's blog been about working conditions then it may well have been protected.

Freedom of Religion: Kyle, the not-so-bright coworker and boyfriend of one of Mike's daughters, is being forced to work on Sundays and he wants time off to go to church. He asks Mike: "Do I have an amendment for my freedom of religion?" Mike says, "It's the same one.You can practice whatever religion you want. Nobody can tell you any different." Kyle then goes on to insist that his boss give him time off for church on Sundays. Here's where the show missed the boat. Kyle's right to have time off isn't from the First Amendment. It's from Title VII, the anti-discrimination law so hated by conservatives like Allen. Among other things, that law requires employers to grant reasonable accommodations for religious reasons and religious practices.

So, while you have rights under the First Amendment, those right aren't protected at work. However, federal and state discrimination laws protect you from religious discrimination. Will we hear Allen making any pro-Title VII comments on the show? Doubtful. And that's probably why he didn't mention it on the show. Title VII protects everyone - black, white, Hispanic, Protestant, Muslim, Atheist, Cuban, American, male, female -from discrimination at work. It probably protects you. It even protects Tim Allen in his workplace, real or fictional.