Re:White House urges ban on non-compete agreements for many ...
by logfromblammo on Wednesday October 26, 2016 @11:00AM
(#12796950)
Freedom to contract is unlimited. You can draw up a contract with any terms you can imagine.
Limited government has limited power to enforce contracts. Take, as an example, an assassination contract. You can write one up and sign it. If you or your hit man later breach the contract, you cannot sue each other in any civilized government's civil courts. You may, however, be able to engage a black-market arbiter to resolve your dispute, and that arbiter may allow terms of the contract that are otherwise illegal to be considered in rendering their judgment.
This is, in effect, saying that no government court will honor any non-compete clause in a contract. It is not saying that you cannot put such clauses into your contracts. But you won't be able to convince the government's justice services to enforce it for you (at lesser cost) if you do.
As government is widely considered a social contract for mutual benefit, a democratic form can certainly alter it such that government power is less readily wielded by those who might use it to harm or exploit the people. Businesses that use non-compete clauses can either assent to the change or start shopping for new jurisdictions.
With respect to your #3, having to pay an arbitrary and unnecessary barrier to entry in order to work profitably using a particular skill set is, in my opinion, unconscionable. It is indicative of an environment where the worker has little bargaining power. Any sane group would band together and use their collective power and mutual self-interest to halt that extraction of rents from their members. Since certain types of worker seem to be knee-jerk opposed to collective bargaining organizations, that leaves government edict.
Your #2 cannot be generalized. It can only be fairly judged on a contract by contract basis. But when enough unconscionable non-compete agreements cross a legislator's desk, the practice is judged by the worst examples. And the worst examples are when big companies collude to depress worker wages, using agreements that are non-negotiable and provide no tangible benefit to the employee. Some people were abusing it, and the only cost-effective way to stop the abuse also stops many of the legitimate uses.
Limited government has limited power to enforce contracts. Take, as an example, an assassination contract. You can write one up and sign it. If you or your hit man later breach the contract, you cannot sue each other in any civilized government's civil courts. You may, however, be able to engage a black-market arbiter to resolve your dispute, and that arbiter may allow terms of the contract that are otherwise illegal to be considered in rendering their judgment.
This is, in effect, saying that no government court will honor any non-compete clause in a contract. It is not saying that you cannot put such clauses into your contracts. But you won't be able to convince the government's justice services to enforce it for you (at lesser cost) if you do.
As government is widely considered a social contract for mutual benefit, a democratic form can certainly alter it such that government power is less readily wielded by those who might use it to harm or exploit the people. Businesses that use non-compete clauses can either assent to the change or start shopping for new jurisdictions.
With respect to your #3, having to pay an arbitrary and unnecessary barrier to entry in order to work profitably using a particular skill set is, in my opinion, unconscionable. It is indicative of an environment where the worker has little bargaining power. Any sane group would band together and use their collective power and mutual self-interest to halt that extraction of rents from their members. Since certain types of worker seem to be knee-jerk opposed to collective bargaining organizations, that leaves government edict.
Your #2 cannot be generalized. It can only be fairly judged on a contract by contract basis. But when enough unconscionable non-compete agreements cross a legislator's desk, the practice is judged by the worst examples. And the worst examples are when big companies collude to depress worker wages, using agreements that are non-negotiable and provide no tangible benefit to the employee. Some people were abusing it, and the only cost-effective way to stop the abuse also stops many of the legitimate uses.