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Friday, March 01, 2019

Gentlemen Prefer Bonds: How Employers Fix the Talent Market

That's the title of the paper I am presenting today at a terrific conference in Santa Clara University. The Symposium is called Antitrust and Silicon Valley: New Themes and Directions in Competition Law and Policy and the articles will be published in the Santa Clara Law Review.

The title of my article is a play on the fact the no-hire agreements between tech giants in Silicon Valley which were deemed per se antitrust violations and resulted in large class action settlements have been referred to as "gentlemen agreements" - they were orchestrated from the very top - CEO level collusion between Steve Jobs, Eric Schmidt and several other tech leaders. But the play on this "gentlemen" term also refers to something I develop in the paper - a gender effect of restraints on trade. The paper argues that beyond the horizontal do-not-poach agreements, and beyond the formal language of vertical noncompetes between employers and employees, both of which I have thought about a lot in Talent Wants to be Free and several other articles here and here and here for example, there is a spectrum of contractual restraints on trade - employee and customer non-solicit, broad ndas, that are designed to prevent employee mobility and impede competition. So the first goal of the article is to explain the broader landscape of anti-competitive restrictions that are routinely required of employees. Second, while many of the harms of noncompetes are well documented, the article presents a neglected aspect of labor market concentration: stagnating gender and wage gaps and persistent inequalities. Third, the article presents an additional problem in the landscape of noncompete law: the pervasiveness of unenforceable contractual terms. The article argues that the problem of unenforceable anti-competitive restrictions in employment contracts calls for a proactive approach to unenforceable contracts, including notice requirements in employment contracts and penalties that target the contracts before litigation has been pursued.

Image result for gentlemen prefer blondes

Posted by Orly Lobel on March 1, 2019 at 02:52 PM | Permalink


Also probably a concentration of wealth effect due to privilege of those that have a financial fall cushion to ride out the process, or a rich uncle to pay for some legal letters back to their prior employers who sue them. (or even the social network and knowledge of parents friends from multi-generational professional families)

All you bring up is true, but the difficulty becomes a break point cusp barrier, not just a headwind effecting some slightly more or less than others with an even distribution of effects.

Posted by: Mike | Mar 3, 2019 6:44:10 PM

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