The Washington Post reported that janitors are being subject to non-compete agreements. Janitors join some Jimmy John’s franchise employees as low wage employees who are or who have been subjected to non-compete agreements.
Non-compete agreements can be particularly daunting for injured workers. Oftentimes injured workers will quit the job where they were hurt and move to another job that is physically less demanding. But a non-compete agreement can add more fear and uncertainty to the life of an injured worker who is already dealing with a work injury.
In Nebraska, non-compete agreements are somewhat difficult to enforce. Nebraska outlaws restraints of trade by statute and by case law. But non-compete agreements can be enforceable if they are reasonable in scope – for a limited time and geographic area – and ancillary to a contract of employment.
The general test of whether a non-compete is enforceable in Nebraska is that 1) not harmful to the public 2) not greater than necessary to protect employer’s legitimate interest and 3) not unduly harsh or oppressive to employee.
Courts in Nebraska tend to focus on whether the compete is too broad to protect the employer’s legitimate interest. A non-compete would likely to be held to be unenforceable under this clause if the employee had no personal or business contact with customers or prospective customers, didn’t know or have access to confidential information, has no skills or knowledge different than what they would have acquired in another business and the employer had no trade secrets regarding their industry.
The issue of whether a non-compete is unduly harsh to an employee is a separate issue. My feeling is that a good argument could be made that changing jobs as a way of essentially self-accommodating a work injury would fall into that category. I believe the Zweiner v. Becton-Dickinson East case would bolster such an argument, but litigation is almost always uncertain and it can be costly. An injured worker looking at the prospect of a workers’ compensation claim may not be willing to take on a non-compete fight as well.
Even a low wage worker who isn’t hurt may not want to fight a non-compete on their own. Jimmy John’s franchises in Illinois only relented on their non-compete for their employees in the face of litigation from Illinois Attorney General Lisa Madigan. While I believe individual workers can fight non-compete clauses, I believe the issue of non-compete clauses and low wage workers would best be addressed in the legislative process. That means voting in legislators who have the best interests of employees in mind and at heart. Pay attention to who those candidates are and vote from them on November 6th.