The NYTimes has a good piece today on the increasing use of noncompete clauses, clauses that say that if you leave a firm you cannot work for a competitor typically for a period of 1 or more years.
Noncompete clauses are now appearing in far-ranging fields beyond the worlds of technology, sales and corporations with tightly held secrets, where the curbs have traditionally been used. From event planners to chefs to investment fund managers to yoga instructors, employees are increasingly required to sign agreements that prohibit them from working for a company’s rivals.
Non competes agreements (NCAs) are dangerous in my view because they put firms into a prisoner’s dilemma: Non competes benefit firms but harm industries by reducing innovation.
Today we all know about Silicon Valley but in the 1950s and 1960s the place for technology was Route 128 in Massachusetts which Business Week called “the Magic Semicircle”. The magic semicircle contained technological leaders like DEC and Raytheon and intellectual powerhouses like Harvard and MIT – this was at a time when Silicon Valley was mostly fruit trees.
When William Shockley left Bell Labs for the Valley it was not considered a promising move. And indeed something strange happened. Shockley wasn’t a very nice person, he couldn’t get any of his former colleagues to come work for him, and within a year of starting his firm in Mountain View, eight of Shockley’s researchers, who called themselves the “traitorous eight,” resigned. The traitorous eight, started Fairchild Semiconductor. Two of them, Robert Noyce and Gordon E. Moore, later left Fairchild to form Intel Corporation. Other people leaving Fairchild Semiconductor started National Semiconductor and Advanced Micro Devices. So it was in this branching off process of new firm creation that Silicon Valley was born.
Now here is the point, if Shockley had started his firm in Massachusetts or in pretty much any other state, the traitorous eight probably would not have left to start their own firm because they would have signed a standard non-compete agreement prohibiting them from competing with their former employer for 18 to 24 months. In California, however, the courts have consistently refused to enforce non-compete agreements. An employee who leaves one company can join a new company and start work the next day and they can do so regardless of any agreement.
Silicon Valley could not operate if non-compete agreements were enforced. Silicon Valley is a hyper-mobile workforce. Moreover, it’s precisely in the circulation of workers that Silicon Valley has one of its advantages the diffusion of new ideas. The key to Silicon Valley and much innovation today is the diffusion, the combination, the integration of different sorts of knowledge and worker mobility has been a big part of this. Not just worker mobility between firms in Silicon Valley but also immigrants, circulation between different countries, university-firm partnerships and so forth.
Firms who come to Silicon Valley know that they cannot use NCA to protect their innovations but they come anyway because the opportunity to learn from other people exceeds the costs of other people learning from you. Thus, worker mobility and the inability to protect IP by restricting mobility is bad for an individual firm but good for the industry as a whole, good for innovation, good for workers and good for consumers.
(Drawn from a talk I gave at a Google Big Tent event in Korea.) Hat tip to Loweeel in comments for some edits.