Antitrust and Unfair Competition Law
Competition: SPRING 2023, Vol 33, No. 1
Content
- 133 Years Young: Sherman Act Section Two Keeps Up With Big Tech
- Antitrust Restoration From California Anchored By a New Monopolization Synthesis
- California Should Amend the Cartwright Act To Address Single-firm Monopolization
- Competition Beyond Rivalry: Adapting Antitrust Merger Review To Address Market Realties
- Dormant Commerce Clause: a Potential Brake On State Antitrust Legislation
- Executive Committee
- Message From the Advisors
- Message From the Editor
- Over-prescription Is Bad Medicine: the Case Against a Knee-jerk Revision of Antitrust Injury
- Should California Adopt Revisions Proposed By Congress and the New York State Legislature To Address Single-firm Conduct?
- Table of Contents
- Technological Monopolies, Innovation, and the Personal Freedom To Form Businesses: Like Oil and Water?
- The Adaptable Antitrust Laws
- The Risks of Requiring California-specific Merger Approvals
- Updating the Cartwright Act For the Twenty-first Century: Allowing Antitrust Claims For Unilateral Conduct
- Why Has California Waited So Long To Enact Its Own Merger Review Law?
- Restrictions On Worker Mobility and the Need For Stronger Policies On Anticompetitive Employment Contract Provisions
RESTRICTIONS ON WORKER MOBILITY AND THE NEED FOR STRONGER POLICIES ON ANTICOMPETITIVE EMPLOYMENT CONTRACT PROVISIONS
By Donald J. Polden1
I. INTRODUCTION
There is increasing concern in the United States about the difficulties that American workers are facing including concerns about limits on worker job mobility and how those limits affect workers’ wages and compensation, employee benefits, and finding their next job.2 Workers believe the challenges they face in changing jobs for better salary and benefits should be addressed so they have greater job mobility and opportunities for advancement. Workers are subject to restraints on job mobility across the spectrum of jobs, including those in executive-level positions as well as minimum-wage employees. Workers complain that they are not constrained in getting better jobs by their experience, training, or education but rather by their employers’ policies and employment practices, especially their growing use of employment contracts with restrictive practices that limit workers’ abilities to seek better work.3
This Article argues that California too should re-examine its laws concerning restrictive provisions in employment contracts and arrangements for their impacts on labor markets, job mobility, and wages. California is perhaps the most restrictive of states in prohibiting the enforcement of employer restraints such as non-competes. While current California statutory policy on non-compete provisions is seemingly clear, there is evidence that it is being evaded by employers who impose the noncompetition restrictions, even if unenforceable. California employers further restrain worker mobility through imposition of other restrictive provisionsâsuch as no-shop clauses, no-hire provisions, confidentiality provisionsâthat are not explicitly covered by California’s statutory policy against restraints on mobility but nonetheless are widely used to hamper worker mobility.4