Instead, the employer may include a non-compete clause in the employment contract. While non-competition obligations can also carry baggage over cartels and abuse of dominance and are governed by statutes and jurisprudence that protect the free movement of workers, they offer direct competitors the „front line“ of the defence against the loss of trade secrets. National laws differ in the area of „reflection“ on non-competition, but first acceptance and retention of employment is generally sufficient. An employer may consider stricter non-competition obligations for high-level workers or those who work directly with important trade secrets, but further reflection is needed. In general, an increase in wages with a promotion would provide the necessary support for a more demanding non-competition clause. Thus, non-poaching clauses prevent employees and consultants from returning to the protected company and employing employees and consultants in their new business. The problem is compounded by the fact that franchisee workers are generally unaware of and have not accepted non-poaching contracts with franchisors. „The big problem here is that this is invisible to the worker,“ Starr said. „The worker does not agree with this agreement.
If they do not get away with their supervisor or if they learn that it is not a good work environment, or if they may have to move sites for some reason, and their skills are actually perfectly transferable to another franchise within the same company, then they are not in a position to do so. When it comes to transparency, workers should know that they are concerned. It is not clear that it is really hidden, though. Most people don`t bother to read their contracts carefully. However, workers should also be free to accept a lower rate of pay than the exemption from this agreement. Thanks to the minimum wage, it is not an option either. This is also why slavery is the inevitable long-term result of a minimum wage policy. Summary – In general, DOJ surveys weigh on companies, threaten individual decision makers and are very troublesome for the company, so the prospect of an investigation should be sufficient to prompt each company to stop and take note of this risk. In this context, the return to our hypothetical safest approach for our client with respect to preventing an antitrust investigation by the DOJ, the FTC, State AG or the civil counsel is not to authorize a „no-poaching“ agreement with a potential competitor for the services of its employees. , but rather to implement some of the alternative strategies mentioned above. Encouraging employees to sign competition bans may not be the best way for franchisees, Johnson suggested.
He indicated that „a non-compete agreement could be buried several pages in a lease agreement,“ and that employees are not allowed to read these lengthy contracts and could simply insert the agreement. He said it might be helpful to require employers to enter into restrictive agreements in their leases with workers in advance to ensure that workers are aware of this. On the other hand, in the case of non-poaching agreements, the competitive advantages appear to be relatively limited. With the increasing number of investigations into non-poaching in the United States, such cases can soon become a feature of Europe.