There was a time on this continent when employees were often indentured servants, signing contracts that effectively made them property. The employer might have to provide certain things like lodging and food. But as the history book White Trash makes clear, the employees were considered waste people. Only something like 40% actually completed their contracts with the employer. The rest died, ran away, or were literally sold to other employers.
Our high school history books glaze over the nature of indentured servitude. But what should we expect when they obliterate the full brutality of enforced slavery of Africans and Native American? Why bring up bad memories?
I mention this because for decades we've seen a tug of war between employees and employers, with the latter generally winning their way through convenient laws. For all the noise about growing minimum wage levels at a state or even local level, companies have moved far ahead on many fronts, whether right-to-work laws (more accurately called right-to-block unions) or turning workers into "contractors" so employers can transfer some costs of employment onto those hired.
There has been some movement back toward labor, particularly in restrictions on non-compete contracts that lock employees into place and make it difficult for them to take other jobs. A few years ago, California outlawed non-compete contracts, reducing the ability of employer, especially those in high tech, to restrain the choice of employees to seek greener pastures. This has helped strengthen the startup ecosystem there. Yes, greater power parity among corporations and individuals can actually mean that everyone does better, because really good employees have no interest in being pawns and companies have to compete, not only in pay, benefits, and opportunities, but in undertaking advanced and interesting work.
But in some states, big employers are trying to hold on to power so they can prevent valued workers from crossing the street to a competitor. The state of Idaho has been one of these exceptions, according to the New York Times. Employers can sue "key" employees for leaving more easily than before. No longer does the employer have the burden of proof to show a significant injury. As the statute reads:
If a court finds that a key employee or key independent contractor is in breach of an agreement or a covenant, a rebuttable presumption of irreparable harm has been established. To rebut such presumption, the key employee or key independent contractor must show that the key employee or key independent contractor has no ability to adversely affect the employer's legitimate business interests.
In other words, if you have a non-compete or related type of contractual restriction on leaving for another job and the company decides to call you a key employee or key independent contractor — which is supposed to mean that you're an independent person who gets no promises and no benefits — then you have to prove your departure doesn't have negative effects on the company's business interests. (Check those contracts — and employment laws of where you plan to work.)
If you're the one leaving, that's going to be virtually impossible. All the employer has to do is say is that it depends on your ongoing work. Boom, you are stuck because the bar to challenge the assumption of injury to the employer is set high.
According to the Times, here's how one proponent of the Idaho law rationalized the move:
Alex LaBeau, president of the Idaho Association of Commerce and Industry, a trade group that represents many of the state’s biggest employers, countered: "This is about companies protecting their assets in a competitive marketplace."
In most states, "their assets" are better known as people.
Erik Sherman writes about business, technology, economics, and public policy. You can follow him on Twitter or LinkedIn.
This article is from Forbes, too. They are kind of, you know, pro business.
