NELP Legal Tracks Developments in Clauses That Restrict Workers’ Rights on the Job

In January, the United Teachers of Los Angeles Union reached a tentative deal with the Los Angeles Unified School District, a tremendous victory that will mean better schools for LA students and stronger communities throughout the city. The win, like previous successful teachers’ strikes in 2018 and the victory of Marriott Unite Here workers last fall, is a modern testament to the power workers have when they come together—something that is stunning in part because the power of U.S. workers has dwindled so dramatically in recent decades.

Along with systematic attacks on unions, one major strategy of corporate interests used to limit workers’ power has been the proliferation of packaging together hiring agreements that force workers across industries to sign away their rights as a condition of employment. These include workers’ right to join together with their coworkers when their employer steals their wages or they face sexual harassment—and their right to leave for a better job, which are usually referred to as non-compete agreements. NELP Legal, in an effort to combat the proliferation of these agreements, continues to track recent developments and cases.

In a particularly egregious example, in October, the Washington Post reported that $3.4 billion dollar company Cushman & Wakefield was suing a former janitor for taking a job in the same building for another firm. The agreement that Cushman and Wakefield sought to enforce was styled as a “non-service” agreement, meant to prevent another management company from coming into one of their buildings.

Thankfully, it seems that the media attention led the company to drop its lawsuit against its hourly employee, and it also returned her bonus, stating that the policy was incorrectly applied and that “restricting the employment of hourly workers” was contrary to its organizational values.

Though it’s an especially startling case, Cushman Wakefield’s tactic is far from isolated. Non-compete clauses were originally meant to prevent engineers or executives from taking “trade secrets” with them when they moved to a competitor, but now, many employers use non-competes to prevent workers across the company from leaving for better jobs and higher wages. Further, the fact that companies are increasingly taking workers to court to enforce non-competes—including companies that are abusive to workers in low-wage industries—shows how far employers are willing to go to restrict the people who formerly worked for them.

In October, I presented on this issue at the EARN Convention in the panel on Economic Policy Institute’s First Day Fairness Agenda, which was focused on legislative and policy changes that could push the law forward to ensure that workers regain equal rights in the workplace. My presentation focused on non-compete provisions, and in particular the issues raised when litigating these cases individually, and detailed recent legislative achievements such as the passage of the non-compete law in Massachusetts. I was joined by Jane Flanagan, the Workplace Rights Bureau Chief at the Illinois Attorney General’s Office, Teofilo Reyes from Restaurant Opportunities Center, and Gordon Lafer of the Economic Policy Institute.

Given NELP Legal’s continuing interest in this area, we were very excited to learn of a recent non-compete development in Maryland. Delegate Al Carr introduced a bill to limit non-competition agreements for low-wage workers and the bill is currently being considered in the Maryland legislature. We must continue to push for legislative and administrative fixes to these issues. NELP Legal was also excited to learn that Governor Cuomo mentioned proposing legislation to eliminate non-compete and no-poach agreements that impede economic mobility in his “State of the State” Address.

With the new legislative season approaching and recent changes in the legislatures around the country, NELP is very excited to assist with legislative campaigns and proposals on this issue. Please reach out if you or your organization is interested in collaborating on this effort.

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About the Author

Najah Farley

Senior Staff Attorney, National Employment Law Project

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