
Freedom to Compete Act [pdf] - protomyth
https://www.rubio.senate.gov/public/_cache/files/7563e7ae-ca85-423b-b3e8-b44ce3b4eb54/1DC3C59DB28D9D2D273ACEB3087742E4.the-freedom-to-compete-act.pdf
======
korethr
Simple, straightforward, to the point, and understandable by a layman. I wish
more bills could be like this.

It's not perfect. As other commenters mention, this only protects hourly
employees, not salaried employees like myself (and I assume a majority of most
other commenters here). But it is also a good start. It is a much more
egregious pile of BS that someone vacuuming floors or flipping burgers for
minimum wage is required to sign a non-compete than I am. I would love it if I
was protected from non-compete agreements too, but I'll happily take Non-
Compete Agreements for Sandwich Artists are Illegal BS as a stepping stone
toward the ultimate goal of Non-Compete Agreements are Illegal BS.

~~~
i_cant_speel
I skimmed the document and missed that part. That's disappointing. Why bother
making the distinction? What's different about salaried employees that they
should be subject to non-competes but hourly workers shouldn't? I understand
that lower paying jobs need protection, but I have never heard of a minimum
wage worker at a fast food restaurant having to sign a non-compete. This law
seems to only have an impact on skilled hourly workers who likely aren't in a
different situation than salaried workers.

~~~
AnthonyMouse
There are companies that value their trade secrets. If you employ an engineer
for ten years and they know the ins and outs of your process and then go to
work for a competitor, soon the competitor has a better product because they
have all their own secrets plus yours.

In theory you could try to use an NDA, but the problem with an NDA is that if
the employee goes to work for the competitor and then suddenly they have all
your secrets, there is no easy way for you to actually prove that they weren't
independently rediscovered by some other person at the other company, and
nobody there has any incentive to tell you different. You may not even know
that they now have any specific one.

The restriction is obviously unreasonable to the employee, because it prevents
them from switching jobs to another that uses the skills they're trained in,
but now it's politics. Who has more political power when a bill prohibiting
non-competes comes before Congress?

Excluding professionals makes it so those companies no longer really care and
makes it a lot easier to actually pass the bill.

~~~
lisper
But the situation is symmetric: your risk of losing secrets to your
competitors is exactly balanced by your prospects of gaining secrets from your
competitors. This tends to flatten the playing field and make secrets
relatively less valuable, which promotes the spread of knowledge, and makes
everyone better off in the long run.

~~~
bilbo0s
All of what you said is only beneficial to the employer if the employer
believes that the competitor's secrets are as valuable as the employer's own
secrets. Which is almost never the case. Especially not for the largest
employers. The likelihood of some startup's secrets being as valuable as
Google's secrets is remote in the extreme.

~~~
lisper
No, the symmetry necessarily holds in general. It is not dependent on anyone's
belief.

Now, it is true that some company's secrets will be more valuable than others,
and it's also true that most companies think that their secrets are more
valuable than their competitors. But because of the symmetry, most companies
are simply and necessarily _wrong_ about that.

It is also true that some companies will lose money as a results of losing
secrets. But society in general will be better off. Which of those is
preferable is a matter of taste, of course. Some people are perfectly fine
with a legal regime that enriches them (or that they think enriches them) at
the expense of everyone else. But if people are making rational decisions,
most people should prefer enriching society at the expense of the wealthy
rather than the other way around.

~~~
bilbo0s
> _It is also true that some companies will lose money as a results of losing
> secrets..._

That's the point though, how do Google's stewards square their pottential
support for losing secrets, with their fiduciary duty to numerous teacher,
firefighter and police officer pension funds? That duty to the investment
funds backing heaven only knows how many 401k's? Their duty to countless other
pension funds and retirement accounts?

"Society will be better off in the future your honor." Is only gonna go so
far.

This is part of the problem, society _might_ be better off at some undefined
and uncertain point in the future. But for investors in Google, they _will_ be
better off right now, and in the short term future. So we're always in this
position of trying to argue an idealistic future, that never turns out the way
you plan it in any case, against an optimal present.

I think as techies we have to start presenting arguments for the changes we'd
like to see in the world that are a bit more practical. Not only on labor
issues like non competes, but also on issues like tech's relationship to
labor, tech's relationship to fundamental rights, tech's relationship to
children, etc etc etc.

At present, a lot of our arguments sound a little tone deaf at best, callous
at worst, and out of touch at the mean. I've said before, in my neck of the
woods, if I tell people, "Amazon treats their employees like crap." They get
it.

If I say, "Google can track your location with android phones so don't bring
your phone to see your weed man." They get it.

I can even say, "Facebook is full of Ruskies trying to influence the
election." They'll get it. They'll know what I mean and everything that
entails.

But if I come at the people in my small town with, "Big Tech is what drives
wealth inequity by disrupting traditional labor markets and causing data
privacy issues. Which, of course, concert to cause knock on effects in the
larger economy." Yeah, that's the kind of post-graduate parrot-speak that
makes them look at my mother disapprovingly for raising such a pretentious
ass-hat.

~~~
lisper
> That's the point though, how do Google's stewards square their pottential
> support for losing secrets, with their fiduciary duty to numerous teacher,
> firefighter and police officer pension funds?

They don't. It makes perfect sense for Google to oppose right-to-compete.

However...

> "Society will be better off in the future your honor."

This aphorism implies that this decision is going to be made by a judge. It
isn't. It is being made by the legislature, and the legislature is supposed to
reflect the will of the _people_. So the right outcome here (if everyone is
acting rationally and honorably) is to enact right-to-compete _despite_
Google's objections.

The situation is no different than (to pick a very extreme example) that it
was right to pass the 13th amendment despite the fact that it was vociferously
opposed by a lot of people who lost a lot of money as a result.

~~~
nostrademons
I agree with every point you've made in this thread, but bilbo0s has a good
point about the optics. The vast majority of the voters do not understand
economics, do not think systemically about "the greater good", and wouldn't
follow an argument as abstract as "Most companies _think_ their secrets are
worth more than their competitors, but the only ones who are correct about
that are giants like Google, who have every reason to push for trade-secret
and non-compete agreements that restrict your labor freedoms and hamper your
ability to get a better wage." There's a bunch of leaps of logic here that I
believe and you believe because we understand competitive bargaining and have
worked for Google, but which are completely foreign to someone who takes the
first job they can get because they need money right now.

The fight for the 13th amendment was framed as "Slavery is evil. If you
support slavery, you are evil too." That's the kind of moral argumentation
that's simple enough that it can get voter support. There was _a lot_ of
economic jockeying going on and fights between new vs. entrenched interests
going on in the Civil War, but all of that was hidden from the voters and
largely written out of the histories. "Google spies on you" is an effective
way to convince people to vote against Google's interests; "Google is
commoditizing their complements and restricting their ability to make
contracts to better their bargaining position" is gibberish to the average
voter.

It's an unfortunate fact of life that nearly all good decisions are made for
the wrong reasons. Sometimes I wish everybody could just understand markets
and systems and vote according to their enlightened best interest - but they
don't, and much of the fucked-upedness of the world comes from that.

------
cryptonector
> ‘‘(3) LIMITONAPPLICABILITY.—This sub-section shall not apply with respect to
> any employee described in section 13(a)(1).

That's:

| (1) any employee employed in a bona fide executive, administrative, or
professional capacity (including any employee employed in the capacity of
academic administrative personnel or teacher in elementary or secondary
schools), or in the capacity of outside salesman (as such terms are defined
and delimited from time to time by regulations of the Secretary, subject to
the provisions of subchapter II of chapter 5 of title 5, except that an
employee of a retail or service establishment shall not be excluded from the
definition of employee employed in a bona fide executive or administrative
capacity because of the number of hours in his workweek which he devotes to
activities not directly or closely related to the performance of executive or
administrative activities, if less than 40 per centum of his hours worked in
the workweek are devoted to such activities); or

I think that means that this doesn't apply to... a great number of people who
really wish it did.

~~~
odessacubbage
>or professional capacity

what does that mean legally? it seems very vague.

~~~
cryptonector
"Professional" as a term of art refers to architects, doctors, and lawyers.
"Professional capacity" includes engineers, programmers, really, anyone you
might colloquially refer to as a "professional".

------
kj4ips
While reading this, I found that "Computer Professionals" are often exempt
from Minimum Wage and Minimum Hours/Overtime Pay, because of 29 usc
213(a)(17). (104th congress, HR 3448)

[https://www.congress.gov/bill/104th-congress/house-
bill/3448...](https://www.congress.gov/bill/104th-congress/house-
bill/3448/text)

Fortunately, this bill (in it's current state) does not reference that
exemption, and only exempts executives, school employees including teachers,
and outside salesmen.

~~~
cryptonector
| professional capacity (including any employee employed in the capacity of
academic administrative personnel or teacher in elementary or secondary
schools),

Are computer professionals not.. professionals?

------
protomyth
The press release:
[https://www.rubio.senate.gov/public/index.cfm/2019/1/rubio-i...](https://www.rubio.senate.gov/public/index.cfm/2019/1/rubio-
introduces-bill-to-protect-low-wage-workers-from-non-compete-agreements)

a labor lawyer's take: [http://employeeatty.blogspot.com/2019/03/marco-rubio-
introdu...](http://employeeatty.blogspot.com/2019/03/marco-rubio-introduces-
anti-noncompete.html)

------
int_19h
Looking at the Congress page for it, it has been introduced two and a half
months ago, and hasn't seen any further action since then. Is it scheduled for
a committee hearing?

[https://www.congress.gov/bill/116th-congress/senate-
bill/124...](https://www.congress.gov/bill/116th-congress/senate-bill/124/all-
info)

------
bovermyer
Not perfect, and doesn't go far enough, but it's absolutely a big step in the
right direction. Has my support.

------
b_b
Bit off-topic, but love that the URL is just the straight up path to the file
on the Windows machine.

~~~
martindale
This was the first thing I noticed. Government demonstrating its competence!

------
anth_anm
This looks great.

If only we hadn't foolishly allowed them to exempt us under teh fair labour
standards act.

~~~
bilbo0s
That's definitely the 'gotcha'. Gotta start somewhere though.

~~~
protomyth
Yeah, this one is aimed at companies trying to make janitors and food service
workers sign a NDA. A good step to be sure protecting some folks that don't
get a lot of attention.

~~~
i_cant_speel
Non-compete. Not NDA.

~~~
protomyth
yeah, my damn error, I thought NDA was included, but not so. Non-compete for
non-exempt is a good start.

------
hadrien01
I get this error message every time I try to visit the US Senate website:

 _> Sorry, a potential security risk was detected in your submitted request.
The Webmaster has been alerted._

------
tathougies
Thank you senator rubio

------
darawk
This is great. Makes me think more highly of Marco Rubio, especially given how
simple it is. I hope it passes, and hope it's extended to all types of
employee.

------
julienfr112
The PDF is beautiful. Is it made with Latex ?

------
PaulHoule
Woo Hoo!

------
twoquestions
Rubio, a Republican, wants to decrease the power of employers by curtailing
non-compete agreements?

I'll give this some serious consideration if it gets out of committee, and
until that time I'm thinking this is bill is more about signaling than
anything else. Still, increasing regulation on employer relations like this is
a good start.

~~~
tathougies
I mean republicans are generally in favor of a free market and non competes
literally reduce competition

~~~
raquo
Why, the existence of noncompetes is exactly free market in action.
"Competition" != free market.

~~~
tathougies
No its not. The freedom to contract is nowhere to be found in the traditional
libertarian view of rights to life liberty and property. In fact, libertarians
(including those center libertarians in the republican party) consistently
reject the ability for people to sign away their rights via contract.

You cannot claim in good faith that republicans support the 'freedom' to
contract your rights away. Can you contract the rest of you labor away for a
fixed sum (ie slavery)? Of course not. You have the grand ole party to thank
for that too. The ethic is consistent

~~~
cryptonector
"You give up the right to spend 40 hours a week the way you want, instead
spending them the way we want, while we give up the right to use some our
money however we like and instead give it to you."

That's the employee giving up their right to the fruits of their labor and the
employer giving up their property right to the monies used to compensate the
employee.

~~~
tathougies
And none of those things interfere with the more fundamental right to life
liberty and property. Is the employer allowed to hold the employee there
against his will if he changes his mind? Of course not. You cannot give up
your right to leave a contract at any time. Which is why non competes are
decidedly anti civil rights and thus anti libertarian and thus against the
rights based factions of the rephblican party

