The Law and Ethics of Restrictions on an Employee’S Post-Employment Mobility

Employee mobility as a conduit for knowledge transfer to a business competitor is a growing source of concern for many employers in the modern business environment where the skills, relationships, and knowledge embedded in a firm’s employees has become an important source of competitive advantage. Employers may seek to restrict the post-employment mobility of their employees to address this concern through the use of various legal mechanisms. Accordingly, policymakers are increasingly asked by employers and employees to address these concerns by adjudicating disputes in the courts and in legislatures, despite not having a full ethical grounding for these policy decisions. We first analyze the incentives and preferences of employers and employees related to employee mobility and then examine three legal mechanisms used to address employee mobility: covenants not to compete, the inevitable disclosure doctrine, and garden leave. We then review the business ethics implications of each mechanism and make recommendations for the policy makers based on property rights, utilitarian, and fairness perspectives.http://deepblue.lib.umich.edu/bitstream/2027.42/90028/1/1172_Bishara.pd

Governance and Corruption Constraints: The Business Ethics Glass Ceiling in Middle East Corporate Governance

This paper argues for a model of a corruption constraint on organizational growth and development in the form of a business ethics glass ceiling. Although the problem of corruption‘s negative impact on economic growth is well documented, this paper‘s contribution is to propose a cohesive model to show how corruption combines with other influences such as weak corporate governance to act as a serious constraint on the business growth of local firms. This previously unidentified barrier to business success is marked by corruption and the model particularly applies to small and medium-sized and family businesses in the Middle East and North Africa (MENA). These businesses are vital to the economic growth and political stability of that region, but corruption makes it difficult for them to grow, overcome a financing gap, and become stronger organizations. Corruption also drains firm resources and warps normal incentives like transparency and accountability that encourage expansion because firms may choose to appear unprofitable to avoid corruption. As a result, the growth of these businesses is limited when they remain poorly run and small in size as they attempt to avoid an onslaught of corruption. This short-term coping strategy fosters the glass ceiling constraint that is the subject of this paper. The business ethics glass ceiling is formed by several factors. These influences are weak corporate governance, social and cultural aspects, and political and economic pressures. This paper focuses on the role of corporate governance and first describes the constraints and the place of these businesses in MENA, before using the regional example of Lebanon to demonstrate the stunting nature of the corruption-influenced ceiling and its role in producing a financing gap. Finally, the paper presents recommendations for breaking through the glass ceiling and provides suggestions for additional research on the intersection of corruption and ethics constraints in emerging markets.http://deepblue.lib.umich.edu/bitstream/2027.42/69255/1/1143_NBishara.pd

Complementary Alternative Benefits to Promote Peace

Recent research has focused on business as a mediating institution that can influence society while engaging in the traditional profit-making and value generation functions. This work includes Professors Fort’s and Schipani’s arguments about how business may be able to play a role in promoting more peaceful societies, and the work of other scholars addressing how businesses might serve a role in reducing violence in society and the workplace. Although there is a significant body of scholarship on the role of business in reducing violence in society, there is little research on concrete steps for businesses to take to achieve this goal. This paper attempts to begin to fill that void. As identified by Fort and Schipani, business may promote more peaceful societies by encouraging a sense of community and by engaging in track two diplomacy. We argue that one way in which to encourage a sense of community and engage in track two diplomacy on a small scale, and therefore potentially play a role in reducing violence, is for business to provide what we denote as complementary alternative benefits (CABs), to its workforce. In this paper, we encourage businesses to offer CABs which focus on sustaining the health, reducing the stress, and improving the camaraderie of its workforce. We argue that business can use these benefits to promote a healthy, less-stressed, and collegial workforce that is less prone to resolve conflicts by violence. Further, we examine the role business plays in promoting more peaceful societies and how employer-initiated stress reduction programs are consistent with both business ethics and peace-building principles. We suggest that the employment benefits firms provide to their workforces may have a significant impact on how those employees interact with society. Finally, we demonstrate how CABs may also reduce costs related to absenteeism and turnover and thus improve the bottom line.http://deepblue.lib.umich.edu/bitstream/2027.42/61344/1/1119_CSchipani.pd

Using the Resource-Based Theory to Determine Covenant Not to Compete Legitimacy

This paper addresses the legitimacy of competing interests involved in the enforcement of covenants not to compete (“noncompetes”). To date, the courts and legislatures have not relied on a principled theoretical framework to identify and assess the competing interests between firms and individuals in this setting. This paper fills the research void by providing a theoretical framework that identifies the legitimacy of these competing claims. The framework integrates managerial research involving the resource-based theory of the firm and the knowledge-based perspective of competitive advantage with the legal analysis and enforcement of noncompete terms. A descriptive framework of the parties’ competing interests provides four discrete scenarios, which formalizes the types of legitimate interests a court must balance when asked to enforce noncompetes. From this descriptive account, a prescriptive analysis is advocated that uses an ownership approach to assess the legitimacy of an employer’s claim to knowledge covered by a noncompete.http://deepblue.lib.umich.edu/bitstream/2027.42/85367/1/1157_Bishara.pdfhttp://deepblue.lib.umich.edu/bitstream/2027.42/85367/4/1157_Bishara_Apr12.pd

Covenants Not To Compete in a Knowledge Economy: Balancing Innovation from Employee Mobility Against Legal Protection for Human Capital Investment

This Article examines a specific policy issue that goes to the heart of the larger debate surrounding the changing employment relationship: How should the law of covenants not to compete adapt to the changing landscape of the U.S. labor market and to the increasing importance of a knowledge-based economy? The author first argues that noncompete policy is of great importance to fostering economic growth and labor markets, and then discusses various theoretical approaches to noncompete enforcement in a knowledge economy. The preferred approach, the author contends, is a hybrid model of selective enforcement that differentiates among workers as “creative” or “service” employees, thereby enhancing the positive spillovers gained from policies at the extremes of the enforcement spectrum.http://deepblue.lib.umich.edu/bitstream/2027.42/97553/1/2013May14NBishara.pd

Using the Resource-Based Theory to Determine Covenant Not to Compete Legitimacy

This Article addresses the legitimacy of competing interests involved in the enforcement of covenants not to compete (“noncompetes”). To date, the courts and legislatures have not relied on a principled theoretical framework to identify and assess the competing interests between firms and individuals in this setting. This Article fills the research void by providing a theoretical framework that identifies the legitimacy of these competing claims. The framework integrates managerial research involving the resource-based theory of the firm and the knowledge-based perspective of competitive advantage with the legal analysis and enforcement of noncompete terms. A descriptive framework of the parties’ competing interests provides four discrete scenarios, which formalizes the types of legitimate interests a court must balance when asked to enforce noncompetes. From this descriptive account, a prescriptive analysis is advocated that uses an ownership approach to assess the legitimacy of an employer’s claim to knowledge covered by a noncompete

Understanding Noncompetition Agreements: The 2014 Noncompete Survey Project

In recent years, scholars and policymakers have devoted considerable attention to the potential consequences of employment noncompetition agreements and to whether legislatures ought to reform the laws that govern the enforcement of these controversial contractual provisions. Unfortunately, much of this interest—and the content of proposed reforms—derives from anecdotal tales of burdensome noncompetes among low-wage workers and from scholarship that is either limited to slivers of the population (across all studies, less than 1%) or relies on strong assumptions about the incidence of noncompetition agreements. Better understanding of the use of noncompetes and effective noncompetition law reform requires a more complete picture of the frequency and distribution of noncompetes at the individual employee level. Accordingly, in 2014, we administered a nationwide survey of individuals in the labor force to ask them about their employment status, history, and future expectations—including their experience with and understanding of noncompetition agreements. In this Article, we describe the methods we used to carry out this survey and refine the data for analysis in hopes of encouraging other researchers to use survey approaches to fill other, similarly important gaps in our knowledge. To illustrate the value of the survey project, we present a surprising empirical finding from our data, one that raises questions about existing scholarship and theories about why employers use noncompetes: We find little evidence that the incidence of noncompetition agreements in a state (after controlling for potentially confounding factors) has any relationship to the level of enforcement of such agreements in that state. In other words, an employee in California (where noncompetes are prohibited) appears to be just as likely to labor under a noncompete as an employee in Florida (where noncompetes are much more likely to be enforced)

Popular support for military intervention and anti-establishment alternatives in Tunisia: Appraising outsider eclecticism

Popular attitudes in support of authoritarian alternatives and weak party systems constitute important threats to democratic consolidation and the stability of new democracies. This article explores popular alienation from established political actors in Tunisia. Under what conditions do citizens support alternatives to the elites in power and the institutional infrastructure of a new democracy? Drawing on an original, nationally representative survey in Tunisia administered in 2017, this article examines three categories of popular attitudes in support of political outsiders.Military interventionism appears in people’s preferences for anti-system politics—the most immediate challenge to the country’s stability and democratic transition. Anti-political establishment sentiments are shown in people’s preferences for an enhanced role of the country’s main trade union as a civil-society alternative to political party elites. Finally, outsider eclecticism is the seemingly incoherent phenomenon of concurrent support for a civil society actor and the military as an ‘authoritarian alternative.’ Anti-establishment sentiments will continue to be an important element in Tunisian post-authoritarian politics, evidenced by the rise to power of Kais Said in the 2019 presidential elections and his 2021 decision to dismiss parliament. In turn, popular support for military intervention may have implications for the country’s domestic security and peaceful transition