Restrain the restraints
America would benefit if workers had greater freedom to choose their next employer
美国将会从中获益，如果工人能够有更多的自由来选择他们的雇主。
THE non-compete clause has
been causing trouble for
over 600 years. In 1414 an English
court heard the case of John
Dyer, an apprentice whose master
had stopped him from plying
his trade for six months. The
judge was having none of it.
“The contract is contrary to common law,” he ruled. Individuals
should be free to pursue the livelihood of their choice.
600多年来非竞争性条约一直给人们造成困扰。1414年一家英国法庭裁决了John Dyer的案件，他是一位学徒，他的雇主要求他停止经营他的贸易6个月。法院不接受这种要求。“这个条约是和民法相矛盾的，”他判决道，个人应该自由追求他们选择的生活。
That principle has been diluted in the intervening centuries—
most countries give businesses some leeway to use non compete
clauses, whereby workers promise not to start or join
firms that go head-to-head with their ex-employer. But their
prevalence in America is striking (see Finance section). According
to a study by the Treasury in 2016, almost 20% of American
workers are bound by a non-compete agreement, and almost
40% have been subject to one at some point. Efforts to rein
them in are intensifying. Rightly so.
该原则在数个世纪里一直都是软弱无力的。大多数国家给企业足够的余地使用非竞争性条约，通过使员工承诺不会创立或者加入一个和他们前雇主激烈竞争的公司。尤其在美国该条约的流行程度是引人注目。根据财政部在2016年的一项研究报告，大约有20%的美国企业员工被非竞争性条约束缚，还有大约40%的人在某一个时刻被一个非竞争性条约束缚。抑制这种非竞争性条约努需要加强。没错！
Incumbency we trust
信任在职员工
Defenders of these agreements put forward several arguments.
One is that non-competes encourage innovation by
stopping rivals waltzing off with trade secrets; there is some evidence
that levels of investment are higher at firms where they
are used. Another argument is that firms are less likely to train
workers if newly skilled employees are able to up sticks and
take what they have learned with them to a rival. Again, research
backs up this claim. A third argument is that firms and
employees should be free to contract as they wish.
这些条约的捍卫者提出一些观点。第一非竞争性条约通过禁止对手偷带走商业秘密来鼓励创新，有证据显示投资巨大的公司很喜欢使用非竞争性条约。另一个论点是如果熟练的员工能够跳槽带走他们所学的到对手那里，那么公司就不太会培训员工 。而且，一些研究也支持这种观点。第三个论点是公司和雇员应该能够按照他们的意愿自由签订合同。
The counter-arguments are stronger. The prevalence of
non-compete agreements is clear evidence that they are being
used indiscriminately. Roughly 15% of American employees
without a college degree, and a similar share of those earning
less than $40,000 a year, are bound by them. Burger-flippers
and care-home workers do not have trade secrets to hawk.
反对的观点也很强烈。非竞争性条约的普遍使用是它们被滥用的明显证据。大约15%的没有大学学位美国雇员和差不多同样比例的年收入少于4万美元的人受这些条约束缚。做汉堡包的厨师和家庭护工也没有商业机密贩卖。
The gains in investment and training must be set against the
wider costs. In one study, in Michigan, researchers found that
workers’ job mobility fell by 8% when non-competes were allowed.
When people cannot work for another employer who
would value their skills, wage growth suffers, too, because
people typically achieve the biggest bumps in their salary
when they move firm. Non-competes are also associated with
a decline in enterprise. One study found that the rate of entry
of new firms into knowledge-intensive industries fell by 18%
when non-compete clauses could more easily be enforced. It is
no accident that California, a notably innovative state, is one
of only three to make the clauses unenforceable except in special
circumstances, such as the sale of a business.
投资和培训带来的收益与广泛的花费相比不算什么。在密歇根的一个研究发现允许非竞争性条约时，员工的流动性下降了8%。员工如果不能为另一家重视他们的技术公司工作，工资也不会上涨。因为人们通常跳槽的时候，才能获得工资的大幅增长。非竞争性条约的使用减少也和公司有关。一项研究发现非竞争性条约很容易被实施的情况，进入一个知识密集型新公司时比率下降了18%。毫不令人意外在加州，一个以创新闻名的州，是仅有的三个使非竞争性条约无法履行的州，除了一些特殊情况下，例如商业的销售。
The costs spill over to all workers—even those who are not
subject to non-competes. Young firms are disproportionately
important for job growth, for example; if fewer firms are
formed, it will affect everyone in the labour market. And non competes
can have a chilling effect even in places that do not
recognise them. One study found that 40% of employees who
turn down job offers from competitors cite the clauses as a reason,
whether they are in enforcing or non-enforcing states.
非竞争性条约造成的花费将会外溢到所有的员工身上-甚至那些没有被非竞争性条约束缚的人。新成立的公司对于增加工作职位极其重要，例如，如果很少的公司创立，这将会影响到劳动市场。非竞争性条约也会对不承认它们的地方造成寒蝉效应。一项研究发现40%的雇主会原因非竞争性条约作为理由来拒绝竞争者的工作申请，根据它们来自非竞争性条约是履行还是不履行的州。
The drawbacks of non-compete clauses are all the more
worrying because of today’s business climate. The incentive to
invest and train counts for less when, as now, the American
economy suffers from a lack of competition. Clamping down
on such agreements would not solve the problem—just look at
the tech giants that call California home—but it would help.
Non-competes are also more worrying when the balance
of power between companies and employees is already
skewed. The spread of mandatory-arbitration clauses in employment
contracts and the decline of trade unions are both
signs of that imbalance.
由于今天的商业风气，非竞争性条约的不利条件时令人担忧的。当今美国由于缺少竞争，投资和培训带来的激励因此减少。限制非竞争性条约不能解决所有的问题-看看那那些科技巨头的聚集地加州，但是这回有一定的作用。非竞争性条约同样也令人担忧，如今公司和雇员之间的平衡力量早已倾斜。在雇员条约中强制仲裁的扩散和工会的下降都是这种不平衡的标志。
The bar to making all non-compete clauses illegal is high.
But the circumstances in which they can be enforced should
be narrow, as they are in California. They should be negotiated
before employees accept a job offer and they should apply for
short times. If a company takes an ex-employee to court, it
should be required to demonstrate genuine harm to its business.
Non-compete agreements were a bad idea in the 15th century.
They still are.
使所有非竞争性条约违法的阻碍是很大的。但是它们可以被执行的范围可以缩小，正如在加州。这些条约应该是可以协商的，在雇员接受工作之前和这些条约应该在短时间内申请。如果一个公司把前雇员告上法庭，该公司需要证明确实对公司的生意造成了伤害。在15世纪非竞争性条约是一个坏的注意，今天仍然是。