Perspectives from Intellectual Property, Labour, Competition and Corporate Law
Edited by Marilyn Pittard, Ann L. Monotti and John Duns
Chapter 13: Taking the long view on competition and the mobile employee: lessons from the United States history of efforts to regulate employee innovation and the mobility of workplace knowledge
An early twenty-first century effort by a national organization of lawyers and scholars in the United States to revise the law of employment provoked bitter disagreement over the proper contours of the law governing employee use of knowledge in competition with current or former employers. The controversy replicates a centuries-old debate over legal restrictions on employee mobility. Since the American colonies first began to recruit skilled British artisans to emigrate in violation of British law, Anglo-American courts and lawyers have disputed whether restrictions on employee mobility help or hinder economic development and free intellectual inquiry. While some uses of confidential workplace knowledge in post-employment competition may be wrongful, many recognize that information flows associated with employee mobility foster innovation. Moreover, as knowledge is inevitably both an attribute of employees and an asset of companies, strong moral as well as practical considerations limit the extent to which companies can and should invoke law to prevent competition from former employees. Businesses are even less likely than lawyers to reach a consensus about the desirable level of protection against competition from former employees. In cases pitting an enterprising employee against his or her former employer, it is always in the company’s interest to restrict employee mobility. In the aggregate, however, companies benefit from employee mobility at least as much as they are harmed by it, for departing employees usually go to work for other companies that recruit employees to gain the benefit of their knowledge. Although some companies may believe they will be net consumers
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