https://portside.org/2014-10-15/when-guy-making-your-sandwich-has-noncompete-clause

If you are a chief executive of a large company, you very likely have a noncompete clause in your contract, preventing you from jumping ship to a competitor until some period has elapsed. Likewise if you are a top engineer or product designer, holding your company’s most valuable intellectual property between your ears.

And you also probably have a noncompete agreement if you assemble sandwiches at Jimmy John’s sub sandwich chain for a living.

But what’s most startling about that information, first reported by The Huffington Post, is that it really isn’t all that uncommon. As my colleague Steven Greenhouse reported this year, employers are now insisting that workers in a surprising variety of relatively low- and moderate-paid jobs sign noncompete agreements.

Indeed, while HuffPo has no evidence that Jimmy John’s, a 2,000-location sandwich chain, ever tried to enforce the agreement to prevent some $8-an-hour sandwich maker or delivery driver from taking a job at the Blimpie down the road, there are other cases where low-paid or entry-level workers have had an employer try to restrict their employability elsewhere. The Times article tells of a camp counselor and a hair stylist who faced such restrictions.

American businesses are paying out a historically low proportion of their income in the form of wages and salaries. But the Jimmy John’s employment agreement is one small piece of evidence that workers, especially those without advanced skills, are also facing various practices and procedures that leave them worse off, even apart from what their official hourly pay might be. Collectively they tilt the playing field toward the owners of businesses and away from the workers who staff them.

You see it in disputes like the one heading to the Supreme Court over whether workers at an Amazon warehouse in Nevada must be paid for the time they wait to be screened at the end of the workday to ensure they have no stolen goods on them.

It’s evident in continuing lawsuits against Federal Express claiming that its “independent contractors” who deliver packages are in fact employees who are entitled to benefits and reimbursements of costs they incur.

And it is shown in the way many retailers assign hourly workers inconvenient schedules that can change at the last minute, giving them little ability to plan their lives (my colleague Jodi Kantor wrote memorably about the human effects of those policies on a Starbucks coffee worker in August, and Starbucks rapidly said it would end many of them).

These stories all expose the subtle ways that employers extract more value from their entry-level workers, at the cost of their quality of life (or, in the case of the noncompete agreements, freedom to leave for a more lucrative offer).

What’s striking about some of these labor practices is the absence of reciprocity. When a top executive agrees to a noncompete clause in a contract, it is typically the product of a negotiation in which there is some symmetry: The executive isn’t allowed to quit for a competitor, but he or she is guaranteed to be paid for the length of the contract even if fired.

Jimmy John’s appears to have demanded the same loyalty as the price of having a low-paid job hourly job making sandwiches, from which the worker could be fired at any time for any reason. Similarly, retailers demand that their workers adjust to schedules that are set by computers and can vary widely from week to week or involve sending people home if sales are slow, but have little patience for an employee who needs to leave early to pick up a sick child.

There are three questions facing employers as they make a broad range of decisions about what kind of arrangement they will have with their workers, particularly in this era when fewer and fewer employees are represented by unions.

First, what is legally acceptable? The courts are even now hearing litigation on some of these questionable employment practices.

Second, what is economically acceptable? For the last six years, unemployment has been very high, meaning workers have had little leverage to demand higher pay and better conditions.

Third, what is morally acceptable? In this depressed job market, employers can get away with some practices that are entirely legal but seem fundamentally unfair.

Future conditions for hourly workers will depend on what happens on all three frontiers. The courts will have their say on a range of wage theft, independent contractor classifications, and other labor issues in the months ahead. The economic recovery has picked up, but it is not clear yet whether it has improved enough to alter the balance of power between employers and workers.

And as for morality, well, that comes down to whether more employers decide that basic human decency requires viewing their workers not as interchangeable cogs to be paid as little as possible and worked to the bone but as valuable partners in building a company for the long term.

A handful of large companies, including Costco, Whole Foods and the fast food chain In-N-Out Burger, have embraced that approach, paying above-market wages and offering benefits for even entry-level workers. A major question for the future of the economy — and working conditions for millions of Americans — is whether the rest of corporate America, encouraged along by legal decisions, public pressure and an improving economy, will start to follow suit.