Have a general question about employment law? Want to share a story? I welcome all comments and questions. I can't give legal advice here about specific situations but will be glad to discuss general issues and try to point you in the right direction. If you need legal advice, contact an employment lawyer in your state. Remember, anything you post here will be seen publicly, and I will comment publicly on it. It will not be confidential. Govern yourself accordingly. If you want to communicate with me confidentially as Donna Ballman, Florida lawyer rather than as Donna Ballman, blogger, my firm's website is here.

Friday, August 7, 2015

Senator Franken Bill To Ban Noncompetes For Low Wage Workers Would Be A Good Start

After the Jimmy John's noncompete for sandwich maker debacle, some members of Congress asked the FTC and the DOL to investigate the sandwich chain for potential antitrust and labor law violations. Some states have moved to ban noncompetes altogether or partially. Now some Democratic members of Congress taken another step toward eradicating abusive noncompetes.

Senator Al Franken has introduced the Mobility and Opportunity for Vulnerable Employees (MOVE) Act that would ban noncompetes for employees making $15/hour or less. It would also require employers to disclose to prospective employees when they may be asked to sign a non-compete agreement upon taking a job. The bill is co-sponsored by Senators Warren, Murphy and Blumenthal.

I don't think this bill has a snowball's chance in hell of getting through the Republican-controlled Congress, but if it did, it would be a good start. This week alone I have encountered two companies that have required every single employee, from the janitor to the CEO, to sign noncompetes. That means secretaries, receptionists, copy clerks, and data entry clerks. There is no possible legitimate reason for these low level employees to have noncompetes. Unless legislatures stop this kind of abusive practice, these low-level employees are going to be virtual slaves.

What is the effect of low-level employee noncompetes? I can think of several:

  • Wages are suppressed as employers figure they don't have to give wages to trapped employees
  • Discrimination and whistleblower retaliation rise as employers feel they can abuse trapped employees
  • Competition is suppressed, which is why these agreements violate antitrust laws
  • Employees can't afford to fight, so they are stuck

I'd like to see more protections for employees. For instance, undue hardship should be a mandatory consideration before any injunction is issued. Here in Florida, the legislature has banned courts from considering hardship on the human people that are employees, so the courts can only consider hardship on the corporate "people" that are employers. I think this is an equal protection problem.

If employees are terminated without cause, noncompetes shouldn't be enforced unless the employer pays out the noncompete period.

If you think that Senator Franken's bill is a good idea, call your senator and tell them so. Only if human people step up and fight for their rights against corporate "people" will anything be passed to protect workers.


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I appreciate your comments and general questions but this isn't the place to ask confidential legal questions. If you need an employee-side employment lawyer, try http://exchange.nela.org/findalawyer to locate one in your state.