You are assuming that no employer would ever pay more and be more flexible in exchange for a non-compete; I can imagine many employers in highly competitive industries who would.
You can imagine many things, but can you point to any evidence? Many people write blog postings about non-competes; I can't recall a single one where extra money was attached.
If you agree with my supposition that forcing an employee to choose the lower-paying job with bad hours would make the agreement anti-employee, we should look at evidence of whether non-competes are paid for by employers. If you disagree with my supposition, we should address that first, as the rest of the argument depends entirely on that.
My first piece of evidence for the proposition that employers pay for non-competes is that some of them prefer to hire employees with non-competes. Companies pay for everything they require of employees, as all unnecessary conditions reduce their options (for employees), and the only reason they ever offer money is to increase their options (from 0-1 or 100-200). In addition, it is very common for employers to value non-competes as assets (for accounting purposes). There are many other points in favor of the idea that companies do pay for non-competes, but we can start here.
Sorry, I don't agree with how you approach the entire problem. Labor law exists mainly because there's information asymmetry between companies and employees. You seem to be presuming that there's a free market for labor; that's not the case when there's information asymmetry. Your "evidence" falls apart when there's information asymmetry.
I think it is well known that there is information asymmetry in every transaction/deal/agreement involving more than one individual; saying that there is information asymmetry proves nothing. There is a highly regulated market for employees, and for employers. I didn't provide any evidence at all; I just asked if you agreed that in certain situations, it was possible for a non-compete ban to be anti-employee.
You said "My first piece of evidence" and now "I didn't provide any evidence at all". Given all the downvotes you've gotten, I recommend that you sharpen your debating tactics. You'll probably get better engagement that way.
Ah I'm sorry, I got confused thinking that we had gone back to my comment on taneq's last parent of this branch.
I attribute the downvotes to the unpopularity of non-complete clauses on HN. In addition to that, most of the libertarian and right-leaning users seem to be in North America, so I can count on less sympathy from ~4-12 GMT. It is also possible that my writing has gotten substantially worse in the last few hours, but it seems unlikely that I am being more rude or unfair than I normally am.
Mostly you're getting downvoted because you want to make legal policy based on what you suppose or imagine, rather than what you can demonstrate actually happens.
It can't be anti employee. Employers don't pay more for employees with non competes they pay less. In the case of the fictional employees you mentioned previously both employers would have faced a more competitive market for employees resulting in higher wages.
The non compete is nearly entirely valuable in that it it depresses wages. In reality its entirely likely that between firm A and firm B neither has a whole lot of special sauce non competes mostly serve to keep each other from competing for employees thus driving up wages.
Lack of wage growth (and accompanying erosion of quality of life) is already a major issue.
Why would you suggest that the employee pay a cost for accepting a fair workers agreement (no non-compete clause)? At least suggest that salaries be raised for people on non-competes.
The value the employee is generating through this IP is always going to be considerably (orders of magnitude) larger than whatever their salary is - the company can afford to pay them more.
The fact that employers value non competes as assets tells you that a) decreased turnover saves money b) employees who can't as easily leave require smaller/fewer incentives to stay
In fact its trivial to show that non competes result in depressed wages. It in fact shows you the exact opposite of what you intend to show. Non competes are valued as assets as it enables employers to pay employees LESS than in a free market.
