Anything that stands in the way of a worker finding and securing their best employment, in terms of both productivity and play, is both anti-competitive and anti-worker. The fact that noncompetes also prevent effective technology transfer between companies (which is how innovation happens) means they're also anti-innovation.

On the last point, see generally J. Doyne Farmer and John C. Holland who've done significant work on innovation and the processes by which it occurs. You'll find presentations from both on YouTube, as well as publications. Both are/were associated with the Santa Fe Institute (Holland died in 2015).

What if the prospective employee is presented with two offers:

1) No non-compete, long hours, and low salary

2) Non-compete agreement, short and flexible hours, and high salary

If this is a possible scenario, would the ban on non-competes be anti-worker?

Non-sequitur, unless banning non-competes would make the hours longer and less flexible or the salary lower on the second job.

You are assuming that no employer would ever pay more and be more flexible in exchange for a non-compete; I can imagine many employers in highly competitive industries who would.

You can imagine many things, but can you point to any evidence? Many people write blog postings about non-competes; I can't recall a single one where extra money was attached.

If you agree with my supposition that forcing an employee to choose the lower-paying job with bad hours would make the agreement anti-employee, we should look at evidence of whether non-competes are paid for by employers. If you disagree with my supposition, we should address that first, as the rest of the argument depends entirely on that.

My first piece of evidence for the proposition that employers pay for non-competes is that some of them prefer to hire employees with non-competes. Companies pay for everything they require of employees, as all unnecessary conditions reduce their options (for employees), and the only reason they ever offer money is to increase their options (from 0-1 or 100-200). In addition, it is very common for employers to value non-competes as assets (for accounting purposes). There are many other points in favor of the idea that companies do pay for non-competes, but we can start here.

Sorry, I don't agree with how you approach the entire problem. Labor law exists mainly because there's information asymmetry between companies and employees. You seem to be presuming that there's a free market for labor; that's not the case when there's information asymmetry. Your "evidence" falls apart when there's information asymmetry.

I think it is well known that there is information asymmetry in every transaction/deal/agreement involving more than one individual; saying that there is information asymmetry proves nothing. There is a highly regulated market for employees, and for employers. I didn't provide any evidence at all; I just asked if you agreed that in certain situations, it was possible for a non-compete ban to be anti-employee.

You said "My first piece of evidence" and now "I didn't provide any evidence at all". Given all the downvotes you've gotten, I recommend that you sharpen your debating tactics. You'll probably get better engagement that way.

Ah I'm sorry, I got confused thinking that we had gone back to my comment on taneq's last parent of this branch.

I attribute the downvotes to the unpopularity of non-complete clauses on HN. In addition to that, most of the libertarian and right-leaning users seem to be in North America, so I can count on less sympathy from ~4-12 GMT. It is also possible that my writing has gotten substantially worse in the last few hours, but it seems unlikely that I am being more rude or unfair than I normally am.

Mostly you're getting downvoted because you want to make legal policy based on what you suppose or imagine, rather than what you can demonstrate actually happens.

It can't be anti employee. Employers don't pay more for employees with non competes they pay less. In the case of the fictional employees you mentioned previously both employers would have faced a more competitive market for employees resulting in higher wages.

The non compete is nearly entirely valuable in that it it depresses wages. In reality its entirely likely that between firm A and firm B neither has a whole lot of special sauce non competes mostly serve to keep each other from competing for employees thus driving up wages.

Lack of wage growth (and accompanying erosion of quality of life) is already a major issue.

Why would you suggest that the employee pay a cost for accepting a fair workers agreement (no non-compete clause)? At least suggest that salaries be raised for people on non-competes.

The value the employee is generating through this IP is always going to be considerably (orders of magnitude) larger than whatever their salary is - the company can afford to pay them more.

The fact that employers value non competes as assets tells you that a) decreased turnover saves money b) employees who can't as easily leave require smaller/fewer incentives to stay

In fact its trivial to show that non competes result in depressed wages. It in fact shows you the exact opposite of what you intend to show. Non competes are valued as assets as it enables employers to pay employees LESS than in a free market.

You're raising the spectre of artificially nonfungible conditions, and ignoring power differentials between employers and employees, as well as game theory leading to non-optimal equilibria.

I don't understand what you mean when you say that I am "raising the spectre of artificially nonfungible conditions"; I described a possible situation, and asked whether you agreed that it was possible that non-compete bans could be 'anti-employee' per your definitions.

I agree that I am ignoring many things, as this is a limited discussion, and I am only addressing the impact of a law on a single employee, and its ethical ramifications.

First, you're moving goalposts (the initial question was about how or why noncompetes are anti-worker, anti-competitive, and/or anti-innovative), and doing so without acknowledging the point. Chalk it up to my own history of arguing on the intartubes, but I find that tedious and generally a Bad Sign of things to come.

Secondly: my second point answers my first.

Markets don't manifest in individual transactions, they manifest as the emergent behaviour of multiple transactions. As others have noted, setting bounds to what can be traded away has proven necessary, empirically, to avoid winding up in a highly non-optimal equilibrium point.

If you're interested in ethical ramifications, I recommend two excellent works on the topic: A Theory of Moral Sentiments and An Inquiry into the Nature and Causes of the Wealth of Nations.

Even that treatment is unsatisfactory as it neglects considerations of short-term vs. long-term trade-offs.

Your example is contrived in that it essentially poses a Sophie's Choice: give up condition of long-term viability A or because of my superior position in establishing and enforcing terms, give up condition of long-term viability B.

The optimum condition would be for no artificial constraint on A or B imposed by the employer.

Its possible in theory for employers to offer additional pay to work in conditions wherein the employee will be slowly poisoned where such additional pay is cheaper than proper safety equipment. Its even possible that the employer will find people dumb/ignorant enough to take this it doesn't mean its reasonable economically for the society to allow this sort of transaction.

Your earlier scenario made no sense as their would be no reason to suspect that the 2 employers respective pay and conditions were related you have just presented it as such. Imagine the law were changed tomorrow? Would the high paying non compete using employer suddenly start paying smaller wages? Would they have any employees tomorrow if they did? A freer labor market would be MORE competitive not less there is no reason to suspect that they wouldn't have to pay more not less to retain the same talent.

I know this, when I get a non-compete it makes me not want to work on that project.

It is like a reverse market regulation against workers that are bringing the productivity and skills to the company.

Company: "Hey come here and build us this thing that makes us capable in this area, and when you are done you can't go on building things for other people". It almost seems like a fatal attraction or overly obsessed/attached owner/girlfriend.

Non-competes are a kick in the nuts really to put it bluntly. You'll know the feeling when you get one. It is closer to a company trying to own a skilled worker rather than a partnership.

You are speaking to emotions, which means I have no way of addressing your concerns, but I will try to highlight why I do not share your conclusions:

>"makes me not want"

I do not want to agree to many terms, so I do not agree to them; this does not make me want to ban those terms.

>"It is like a reverse market regulation"

Non-competes are 'like' any other business agreement to me. In any case, I am not sure what a 'reverse market regulation' is.

>"seems like a fatal attraction or overly obsessed/attached owner/girlfriend"

If you were analogizing an employer/employee relationship to a sexual one, they would seem most similar to a pimp or john; I do not think this is a useful analogy.

>"are a kick in the nuts... You'll know the feeling"

Many agreements feel unpleasant; I dislike any deal which obligates me to pay a large sum of money. This is interesting, but not very important to anyone else.

The way I look at a job is you get paid three ways.

1. Money.

2. Skills and Knowledge.

3. Career Contacts.

With non-competes a company is trying to screw you out of #2 and 3.

As a counterpoint, it allows companies to give you a higher salary in exchange for #2 and 3. Or alternatively, if non-competes are the norm, it would allow a business to provide lower salaries for the incentive of no non-compete clause.

The argument whether to ban non-competes should be rooted in the practical applications of the clause. Highly skilled, in-demand workers have the power and financial safety to negotiate a non-compete clause.

The question is when the power dynamic between employer and employee is heavily skewed yowards the employer, can they abuse this imbalance to force non-competes as a market equilibrium.

For example, for a person struggling financially, the slightly higher salary may be a short-term requirement, while the non-compete ruins their long-term prospects.

The issue is, as you mentioned, the employer does have an unfair negotiating advantage. Most employees don't have the luxury of paying lawyers (or the knowledge that this is something they should do) to look at every non-compete offer and explain the contract. Having just gone through the process, lawyers are very expensive and time consuming. Talking to people about it reveals that most people don't really understand the issue either, believing wrongly that non-competes are not enforceable. Many companies also try to hide non-competes until after you have accepted the job offer. Companies in contrast have a much easier time hiring a lawyer, as they can offer a standard non-compete to each of their potential hires. So this is an area where it makes sense for the government to step in and protect workers.

iff it's a higher salary in exchange for #2 and 3

i suspect the employer / (healthcareinsurer if in US) imbalance is really the core issue.

In medical research ethics, informed consent acknowledges the imbalance. I think e.g. CA unenforcement of non-compete does a similar job.

(I am also a worker bee and benefit from non-enforcement, so take my input for the electrons they're based on.)

I'd be ok with #2 and #3 if the company would continue to pay the employee for the full duration of the non-compete.

Or the non-compete allows them to keep your salary lower because you have fewer options of places to work.

That is the right answer.

If you think non-compete agreements 'screw you out of #2 and 3", but still want the job (probably) because it is your best chance to get #1, it seems that you are being paid 1 in exchange for 2 and 3. The non-compete ban simply blinds you to the opportunity of selling 2 and 3.

That is how it should work in theory, but not how it works in practice. In practice companies can use their better understanding of the true value/cost of non-competes to exploit workers. If there exists a large pool of workers who are willing to sign non-competes because they are not well informed about them, than in order to get a job you will have to sign a non-compete (or move to CA).

If a particular situation like non-competes is a net negative for society as a whole I don't see why we should bother to allow them.