Apr 8, 2023 3 min read

A couple of years ago, state Sen. Camera Bartolotta was championing a measure that would do away with noncompete agreements for individuals who work in radio or television in Pennsylvania. The Carroll Township Republican believed that career opportunities and wage growth are stifled when on-air or production personnel are tethered to one outlet or one market for a fixed period of time after a job ends.

The bill made a lot of sense. But the whole idea needs to be taken a step further – workers in all industries in all states should not be locked into noncompete agreements.

That could very well happen if a new rule being considered by the Federal Trade Commission (FTC) takes effect. The FTC announced the proposed change in January and public comment is being taken through April 19. The agency argues that doing away with unfair deals that prevent employees from moving on to greener pastures will jump-start wage growth, mobility and opportunity. It’s a solid argument, but it’s also a matter of fundamental fairness: In a free-market economy, where most employees offer their skills, time and labor to an employer, they should be able to make their services available to someone else offering better compensation or conditions.

After all, most employers have the right to hire and fire at will. Brendan Lynch, an employment attorney at Community Legal Services of Philadelphia, put it this way in the Pennsylvania Capital-Star: “The one benefit to workers for at-will employment is the freedom to leave a job and seek work anywhere else. The huge increase in noncompetes takes away even that illusion of parity: workers can be fired at any time, without cause, but new jobs in their fields are off- limits.”

Proponents of noncompete agreements say they have invested time and money in training and talent, and don’t want to see it poached. But rather than being confined to industries like software engineering or sales, where employers might have a legitimate desire to hold onto their trade secrets, noncompete agreements have been used for hairdressers, janitors, nurses, veterinarians, warehouse workers and fast-food workers. Of the 18% of U.S. workers who are subject to noncompete agreements, 30% work for less than $13 per hour. The FTC has estimated that noncompete clauses prevent 30 million American workers from putting $300 billion in their wallets.

A better course of action for employers would be to use or strengthen nondisclosure agreements, rather than put employees in a position where they could be penalized if they seek work in the same field elsewhere.

Also, according to Silas Russell, the political director of SEIU Healthcare Pennsylvania, “The best way for an employer to keep a worker is to offer wages and benefits those workers deserve, not threaten to sue them for seeking a better opportunity.”