When the Guy Making Your Sandwich Has a Non-Compete Clause

by Neil Irwin

If you are a chief executive of a large company, you very likely have a non-compete 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 non-compete 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 non-compete 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.

A non-compete clause for sandwich makers sounds improbable, but it's true. 

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 non-compete 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 non-compete 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.