
The Unfreeing of American Workers - throwaway938402
https://www.nytimes.com/2017/05/22/opinion/american-workers-noncompete-agreements.html
======
georgeecollins
In the US the rhetoric is "free market". But in political practice this means
responding to large corporations who often want laws that make if difficult
for others to compete with them. Telecoms want to be able to coalesce into an
anti-competitive oligopoly. IP holders want to control their rights for longer
and longer. Commodity producers like farmers want state subsidies.

Americans love capitalism because it is the best system known to distribute
resources. But we need to separate the idea of being pro-capitalism from the
idea of being pro-corporate lobbying. They are not always the same.

~~~
maxxxxx
I used to believe in "free markets" until the financial crisis of 2008 . Then
it became clear that the people who shouted "free market" the loudest didn't
like it when market forces hit themselves. And they changed the market rules
to their benefit. It's a rigged game.

We should replace "free market" with " functioning market". It's pretty clear
that a lot of markets are dysfunctional and benefit only a few.

~~~
Pungsnigel
Or actually mean free market when we talk about "free markets". That is, we
should make it very clear that the market rules shouldn't change to benefit
specific corporations.

~~~
awinder
That's all well and fine until one market segment (finance) can grind capital
for unrelated industries into the ground by crunching credit. It's a classic
ecosystem problem, some of the critters in the pond are going to rise above
others in the chain, and that can cause ill effects everywhere if not properly
controlled.

Given that one of the defining characteristics of humanity is that we've been
cultivating ecosystems for millenia, it's not that much of a stretch to say
we're going to cultivate our own invented ecosystems for the betterment of the
system. It's actually a stretch to say -- we're just going to throw all these
actors into a system of shared responsibility, and they'll just work it out.

------
cubano
My personal life experiences tell my that, nowadays in the US at least, most
people couldn't care less about the idea of "freedom" and on a daily basis
happily trade it for faux-security and financial gain.

In fact, most are scared by the idea of it and actively try to limit the meme.
This explains why the US has basically become a prison state and has roughly
4% of the world's population and 33% of the incarcerated inmates, with no
serious efforts at reform seeing the light of day.

I suppose given our evolutionary biology, these attitudes aren't surprising,
and really represents just another form of tribalism where the ingroup works
safe "corporate-drone" jobs and the outgroup don't.

~~~
somecallitblues
That incarceration rate is there to keep the blacks off of streets and away in
prisons. It's the modern form of slavery and one in three black males will be
put in prison once in their lifetime. Not sure that it has anything to do with
evolutionary biology and all with a fear of a black person.

~~~
devmunchies
I think its a positive feedback loop. We criminalize blacks, which makes life
"harder", which makes crime more attractive, which leads to more crime, which
criminalizes blacks...

But there could be a _chicken or the egg_ argument as to which step occurred
first in the loop (crime vs criminalization), because blacks didn't make up
such a large percentage of prisons until the last few decades.

~~~
tcfunk
I believe the egg was once called slavery

~~~
devmunchies
I think that's lazy thinking. Blacks didn't make up such a large percentage
just a few decades ago, so its a recent problem. Fatherless homes, for
example, are much more common than before.

~~~
southphillyman
Slavery transitioned to Jim Crow which transitioned to Redlining which
transitioned to systemic poverty by the 60s-70s. Every thing was nicely set up
for the arrival of the Anti Drug Abuse Act of 1986.

~~~
devmunchies
So you are more directly blaming the Anti Drug Abuse Act of 1986 rather than
just slavery, which make more sense to me.

Are you also indicating that slavery enabled rather than caused the current
predicaments?

~~~
jsymolon
Look at what Nixon's Aid (Ehrlichman) said about Nixon's drug policy. (Excerpt
NY Daily News):

The “War on Drugs” was actually a political tool to crush leftist protesters
and black people, a former Nixon White House adviser admitted in a decades-old
interview published Tuesday.

John Ehrlichman, who served as President Richard Nixon’s domestic policy
chief, laid bare the sinister use of his boss’ controversial policy in a 1994
interview with journalist Dan Baum that the writer revisited in a

------
LanceH
How did non-competes suddenly become big news? Has there been some recent
change to laws surrounding the non-compete?

I'm seeing articles everywhere about it. Some of them are politically slanted
against the current administration, but I can't recall any party doing
anything about it for some time.

If I look at California and Texas (blue & red), in one it is legally
unenforceable and the other it is practically unenforceable.

None of articles about non competes seem to have any details either. It all
seems to be a hypothetical. They seem forced and driven by something else (or
are they just copying each other).

Just me?

~~~
hodgesrm
If you follow the link from Krugman's column to the NY Times series [0] you'll
find a wealth of details with specific examples of harm to employees.

[0] [https://www.nytimes.com/2017/05/13/business/noncompete-
claus...](https://www.nytimes.com/2017/05/13/business/noncompete-
clauses.html?mcubz=2&_r=0)

~~~
Bartweiss
Certainly I think they're a real issue, but I've gone from seeing an article
or two a year to 5-10 in the last month. What changed?

~~~
LanceH
Answering my own question (and yours), I guess I've seen a number attached to
it recently, and the press does love numbers. Thirty million is the number
being repeated, so maybe it's a case of copying and an unlikeable president to
attach it to.

The articles seem to be split into two flavors of "sympathy for the worker" or
"let's associate this with Trump".

~~~
TheCowboy
Pushing the question about 'why is it suddenly popular' can appear to be a
veiled attempt undermine a clearly anti-competitive abuse, or be trying to
appear contrarian and savvy. But, the sooner this issue reaches a critical
mass of attention, the better.

This is a problem that is likely having a detrimental affect on economic
growth and innovation, and that could get worse.

Giving the benefit of the doubt as to why this could be more popular:

1\. Confirmation bias. You're assuming your observation is correct that it
suddenly has blown up relative to past coverage. Maybe you just haven't
noticed it. If you search for stories on HN, it's a common topic over the
years.

I am more of the view that it has actually increased in popularity over time
because of #2.

2\. The abuse is becoming more commonplace.

What started getting abused due to hot tech talent markets is now being
applied to more job sectors.

If some companies try and successfully abuse noncompetes to reduce turnover or
wages, then other companies will follow. It's a tactic destined to snowball
until a court case strongly rules against the broad application of NCs, or law
is passed prohibiting this abuse.

3\. Political issue "consciousness raising" could have some exponential shape.
Your inquiry is more of a general interest in political science. There is
likely some literature on how this process happens that would provide insight.

------
atemerev
So -- insurance-based healthcare with barriers of entry for newcomers,
revolving doors, overcharging for everything and regulated to hell is now free
market?

Noncompete agreements, preventing free competition of labour -- those are free
market?

And the answer to these problems is somehow _more_ regulation, and more lock-
in arrangements with fixed payments to benefit the usual suspects? Whoa.

Free market _does_ solve many problems. Healthy competition and low barriers
of entry is the only way to make things more affordable. However, free market
is not a natural state of affairs -- ironically, we need government help to
promote it, to create competitive playing field. Unfortunately, this is also
not natural, and corruption prevails.

Socialism equals inefficiency. Revolving door crony "capitalism" is
indistinguishable from oligarchic socialism. Only competition brings
efficiency to complex systems.

~~~
ensiferum
"... we need government help to promote it, to create competitive playing
field."

Level playing field. but in the us the playing field is never level. Big money
companies lobby rigorously to rig the game for their advantage.

~~~
atemerev
Lobbying is fine, when it is open, transparent and competitive (there are
always stale laws that need to be corrected). The alternative (lobbying is
officially prohibited and everything happens behind closed doors) is worse.

Direct democracy (like we have in Switzerland), where most of laws are
initiated by the public and voted in (or rejected) on referendums also helps.
But it only works with fast enough iterations, where poorly thought laws can
be easily repented. However, representative democracy is worse in any way.

~~~
ensiferum
"Lobbying is fine, when it is open, transparent and competitive (there are
always stale laws that need to be corrected). The alternative (lobbying is
officially prohibited and everything happens behind closed doors) is worse."

It seems that what happens now is the combination of those two. Politicians
take money (and campaign donations etc.) more or less in secrecy from private
organizations/corporations.

I don't think there's any way for them to represent the people anymore in an
unbiased fashion. They just represent the companies where they get their money
from.

But is the goverment for the people or for the businesses? In the US for the
latter.

------
nickez
"Her employment contract might very well include a clause preventing her from
leaving a few months later for a job with a rival pest-control firm, since she
could be taking crucial in-house information with her. And that’s perfectly
reasonable."

What.. How can that be completely reasonable? It might be reasonable if the
company isn't allowed to fire her, but as far as I understand it is quite easy
to get fired in the US to..

~~~
Jtsummers
How easy or not it is to be fired varies by state. Right to Work states are
the easiest to be dismissed in (fired or laid off, not all dismissals are
firings). More union friendly states (NY, CA, WA), it's harder to be
dismissed.

In almost all states, government jobs are hard to be dismissed from after your
initial probationary period (typically 1-3 years). Though sometimes getting to
an extreme in cities like NYC where it can be so hard to dismiss a teacher,
they just box them up in a teacher version of in-school suspension.

~~~
walshemj
you can still be fired easily for cause or via redundancy one would assume

~~~
Jtsummers
"Easily" is relative. If you work in a union friendly state and are in a
union, cause usually has to be documented and there is often an appeals
process. You may also be required to provide an opportunity for the employee
to correct their behavior (which they have to document). If they fail to do
that, you can dismiss them, if they succeed, you have to start over again when
they start screwing up again in a year or two. Pros and cons. I'd rather have
the protections of a union than not, but it also allows people to abuse it.

In a Right to Work state, you can generally be dismissed very quickly for very
little cause, with little recourse.

~~~
walshemj
from direct experience in the UK which have the protections you mention its
still relatively easy to fire for cause gross misconduct even more so.

------
falcolas
Non-compete agreements are bad, but can be avoided or nullified in court. A
lot of companies who have realized this are instead starting to use really
nasty and broad copyright assignment agreements in their place.

My current place of employ has you sign a copyright assignment that lasts one
year post-termination, and it's not the first place I've seen these in place.
I wasn't in a position to turn down the offer at the time, so now I have to
figure out a way around it (which probably just consists of "keep my head low
and don't be a target").

It bothers me, but with the at-will employment laws, the employers effectively
have all the power in the relationship. Working for myself as a contractor has
its own set of problems (and doesn't exempt you from problematic copyright
assignment clauses). What's an employee to do?

~~~
pmiller2
How can a copyright assignment that lasts a year after you're terminated be
enforceable? That has to be considered unconscionable.

~~~
falcolas
I'm sure it's enforceable in the same way that non-compete agreements are: the
bigger lawyer fund wins. It's not unconscionable until you take it to court.

~~~
pmiller2
Yeah, but, on the face of it, it seems so restrictive that you could just show
up and have your lawyer ask the judge to throw it out, and they would. I
suppose the company could drag you through appeals, but how do you work for
the year following leaving the company? I guess this is making my head explode
too much to think sanely about it. :/

------
bediger4000
Enforceable non-competes are just part of the whole trend towards keeping
things the same. We have "Intellectual Property" laws so that someone owns
ideas, we have regulations to keep oligopolies and regional monopolies in
place (and favor incumbents) and we have treaties like ACTA, TPP, TIPP which
in effect lock down labor, and to and extents criminalise activism. To back it
all up, we've got dragnet surveillance. It seems like the US and western
Europe as a whole just wants to keep things as they are.

------
dovdovdov
America could do with some more socialism, yes it costs money, but payed
holiday, proper maternity leave, pension contribution and such help employees
feel like a human being, instead of an exploitable company asset.

~~~
jasim
I find Socialism quite a broad name and depending on which shade we look at it
through, it can mean collectivism, absence of a free market, centralized
decision making, bureaucracy, and the potential for an authoritarian
administration.

A Welfare State on the other hand covers the things you mentioned, and has
fewer negative connotations. I'm saying this here because the state providing
a minimum welfare guarantee to its citizens should be an unquestionably
accepted idea, but the confusion with socialism often undermines it.

A related read - [http://quillette.com/2016/01/21/socialism-is-worse-than-
capi...](http://quillette.com/2016/01/21/socialism-is-worse-than-capitalism-
you-want-a-welfare-state/)

~~~
somecallitblues
Op probably referred to the good kind most Western Europe is enjoying.

~~~
dovdovdov
I meant everywhere where there are proper social services.

I only went with the word 'socialism' because it triggers many. ^^'

------
leroy_masochist
No mention of any of the state laws that make noncompetes unenforceable (e.g.
California, Florida) or place massive restrictions on them (Texas, Colorado,
etc). Would be interesting to see how Krugman's "one in five" stat would hold
up if state law were taken into account.

------
surge
Non compete clauses are unenforceable (especially if the state has a right to
work) and I simply do not sign them. For me, it's a deal breaker. If you have
a right to fire me for any reason, I have a right to leave and go work for
someone else, including a competitor in a the same industry in which my skill
set lies for any reason (especially if that reason is higher pay).

~~~
devopsproject
Some terms are absolutely enforceable. The cost and time to defend yourself
from lawsuits is also not free.

------
nicholasjarnold
So the article's premise is that ~30 million Americans are tied to their
current employer with a legal agreement that prohibits them from seeking
employment at another firm that may offer them a better position.

I agree that in principle this is a problem that should be addressed, however
in practice in my personal experience it's never actually a problem. I've not
been CEO/CTO of any company, but I have been team lead and/or considered a
'senior' member of the engineering team. I also have friends who've held those
types of positions. Both myself and the aforementioned friends have never had
one problem transitioning to a better deal elsewhere despite having signed
these non-compete agreement, even in the same industry.

Do others have different (bad) experiences with non-competes in practice? My
assertion is that while these agreements might be sometimes enforced/pursued
when talent flees, it seems exceedingly unlikely unless the person fleeing
under agreement is at the very top of the ladder (meaning that way less than
30M are actually affected/limited, in practice).

edit: Clarified that I DO AGREE that it's a problem in principal.

------
corbet
He seems to have missed the health care portability act signed during the
Clinton administration. That fixed the "health insurance ties you to a single
job" problem. As I understand it, even the current crowd isn't trying to mess
with that particular protection.

------
golergka
If you use your freedom to voluntarily give away your freedom, can you be
called "unfree"?

~~~
throwaway9980
"None are more hopelessly enslaved than those who falsely believe they are
free." \- Goethe

~~~
somecallitblues
I have to remember that one

------
dforrestwilson1
Sorry but Paul Krugman is biased trash.

Requiring employers to shop for and provide health insurance is only going to
complicate the already complex system and lead to crappier less competitive
outcomes.

------
pvnick
> American conservatives love to talk about freedom [but here's why they are
> hypocrites]

> ... if the Freedom Caucus gets its way, [bad thing]

> ... few expect the Trump administration to [good thing]

> the Trump administration is [bad thing]

Even in an article about non-competes Krugman can't help but slather on the
bias. It amazes me that people still take this man seriously and that his
books are so widely used in economics classrooms. Krugman has long since
abandoned any hint of objectivity, and thus his conclusions should be
considered with a heaping scoop of skepticism.

~~~
antientropic
It's an opinion piece on the opinion pages of the NYTimes. It's not a paper in
a scientific journal. It's not required or expected to be "unbiased" or
"objective".

~~~
tanderson92
You are correct, yet even though I agree substantively with Krugman even I
find his hectoring tone and use of loaded language discomfiting.

------
fivestar
The whole article starts off with bs: First, non-competes are rarely so
airtight that a person can't work in their field for another employer. Second,
the whole FUD about healthcare is total bs as well--the ACA is screwed up and
Americans badly need any replacement that might control costs better. The
whole "pre-existing" condition FUD is crap, too, since the new healthcare bill
doesn't do away with that "protection". I should add that I don't think it is
fair that un-insurable people push their problems onto the rest of us because
all that does is bring everyone down! It's nice to think we can look out for
our nation's most vulnerable people, but what if we can't do that and maintain
viable economic growth? What then?

I didn't even read the rest--the NY Times needs to go out of business if they
can't do honest journalism without injecting their anti-Trump agenda into
Every. Single. Article.

~~~
spamizbad
First: This is an editorial, not an article.

Assuming you sign a non-compete, whether or not you can work the field for
another employer may require you to consult a lawyer which costs you $$$. Your
previous employer may try to bully you, or your future employer into
terminating your arrangement. While it's true several state have largely
neutered non-competes for "Low-wage employees", higher paid professionals
still have less freedom.

The ACA is missing a public option and is suffering from insurance markets
being actively sabotaged by politicians who want to replace it with their own
flavor.

The AHCA only protects you for your pre-existing conditions if you maintain
continuous coverage (No gap greater than 63 days in the prior year), something
that millions of people experience every year. This also means, during any
significant recession, millions will lose insurance.

~~~
valuearb
The ACA is great. Sure as a self employed person i can't afford the maszive
premiums, ($22,000 a year for a $5,000 deductible) but I simply don't pay
premiums. If I, or anyone in my family, gets seriously ill one year, we can
sign up for ACA coverage at year end and they can't refuse us because it
doesn't restrict pre-existing conditions.

And until that happens, I let the suckers pay premiums.

Edit: Corrected my misuse of AHCA.

~~~
Jtsummers
I believe you mean the ACA. With the AHCA your plan won't work out so well.

But here's the flaw in your premise, sure your new condition will be covered.
But I had gall stones, needed surgery, it couldn't wait long. I had two weeks
to get insurance using your strategy, feasible.

Then I had a toe torn off. Surgery that night. There's no opportunity to get
insurance, and the cost was (without insurance) probably $10-15k (the
hospital, the surgeon, the ambulance). Unless you're calling and getting
insurance on the ride in, you're on the hook for a large portion of that,
unless you don't value your credit score or lie to them about your name and
social.

~~~
valuearb
You are right, I meant ACA.

I actually have whats called "short term insurance". It's only allowed for 6
months, but because of that and because it can set pricing based on pre-
existing conditions I get roughly the same benefits of the $1800 ACA package
for only $200 a month.

The negative is I have to reapply every 6 months, so there if I get gallstones
or my toe torn off, it's fine unless it falls right on the end of the 6
months.

Since all of these policies have $5K deductibles per person, and $10k per
family, I"m paying for most of those situations out of pocket anyways. The
benefit of the insurance is for really serous expensive problems, which will
tend to last until I can get ACA. And that the insurance company will knock
down the hospital bill to what they deem acceptable, saving me lots of money
there.

