NY Daily News: Just ban noncompete agreements

October 18, 2021 Anti-Monopoly Policies & Enforcement

Last week, Politico reported that the big New York public affairs firm, Mercury Public Affairs, was in upheaval because several key employees were leaving. While it sounded at first like a typical internal drama, the real story was below the headline: The company that owns Mercury, Omnicon, is abusing its power to steal value by using noncompete clauses. They required all employees to sign a contract that limits anyone from working for the firm’s clients — or even working with each other — for more than a year.

Noncompetes are increasingly in the crosshairs of reformers, from labor organizers to President Biden. This summer, he directed the Federal Trade Commission to issue rules limiting these restrictive agreements. California has banned noncompetes.

Other states should follow suit, as should the federal government. More people are realizing that noncompetes are just a paper form of employer theft, whether of blue-collar or white-collar workers. They allow employers to keep wages low because they can threaten to sue if a worker leaves.

They crept into the workplace very quickly. A decade ago, fewer than 20 million workers were subject to them; now it is likely more than 60 million workers, or between 30-50% of the private sector.

They are a major driver of inequality, because they take away the key power most people have against massive corporations: the threat of leaving. Want better pay? You can’t walk into your boss’s office and ask for a raise with confidence if they know you can’t afford to be without work for a year or more. Want better working conditions, better safety? The biggest leverage most workers have in a largely non-unionized private sector is the ability to take their labor or take it elsewhere. Noncompetes take that off the table.

They trap women in abusive workplaces, as Sandeep Vaheesan and Sally Hubbard argued last year. Women who are harassed cannot quit to join a fair and equal workplace without potentially being sued.

They are particularly problematic for Black and Brown employees, who, because of past and ongoing racism, more often don’t have the capital that allows leaving a job without going directly to another job, or to be able to afford a lawsuit. The service jobs and fast-food jobs that noncompetes are racing into are disproportionately held by people of color.

They also deprive society of innovation and people starting new businesses.

Noncompetes are just a punch in the face to any notion of a free market, let alone a fair market. How can we have competition when the very individuals who might compete are stuck?

Omnicom is an example of one of the hidden monopolies that are destroying our economy by concentrating power, increasing inequality,and depressing wages. Because we failed to enforce antitrust law for so long, we have similar monopolies in almost every field: seeds, pharmacies, office supplies and social media, just to name a few. Omnicon controls in excess of 40% of all television advertising dollars in America, and along with one other agency, controls nearly three-quarters of the market. It owns more than 1,500 agencies, including huge parts of the creative, branding, health care, public relations and promotional marketing. It leverages power in one part of its empire to build and maintain power in another.

What many economists will tell you is the fact that an employer even has the audacity to ask for a noncompete is itself pretty good evidence of market power. If we had a more decentralized marketplace, an employer asking a prospective employee to sign away their right to freely leave would be laughed out of the room. “I’ll go across the street,” she’d say. But when the firm across the street is owned by the same company, or there are so few firms in an industry that they can wink and nod the same abusive terms, most people understandably agree to these terms.

In his 2010 book, “Cornered: The New Monopoly Capitalism and the Economics of Destruction,” Barry Lynn used Omnicon as an example of monopolies in white-collar work, noting that the extreme concentration in advertising made advertising and public relations far less innovative and dynamic, because when you went up the food chain, the hundreds of thousands of people who work in the industry were effectively working for one of just two guys.

That was before the proliferation of noncompetes, where the stranglehold of a few companies has gotten even worse. Don’t we want to encourage people to find people at work that they then start new companies with, and, after learning at one of the giants, start their own, competitive shop?

The good news is that at both the federal and state level, there are bills that would ban noncompetes. Now only if we can get them through our political system, which has a lot of monopoly money flowing into it.