As legal commentators and policymakers have taken greater notice of the harms that covenants not to compete (“noncompetes”) cause workers, they have offered numerous policy proposals seeking to curb those harms. Indeed, the Federal Trade Commission proposed an outright ban on non-competes on January 5, 2023. None of these policy proposals have yet become law at the federal level. But what if there was a way to increase the legal protections afforded to workers without a single new piece of positive law?
This Note identifies one such way. Under the federal employment laws, the primary test for determining whether a worker is an “employee,” and thereby protected by those laws, is the “right-to-control” test. That test asks whether the purported employer has control over the manner and means by which the purported employee accomplishes their work. Non-competes greatly increase a worker’s dependence on their purported employer, which in turn greatly increases the level of control that a purported employer exercises over the worker. Yet courts give insufficient attention to non-competes when applying the right-to-control test, effectively placing some workers who are subject to “employer”-level control outside the reach of federal employment law protections.
This Note makes the case that courts have erred in failing to give significant weight to non-competes when determining whether workers are “employees” under federal law and that a faithful application of the right-to-control test would include non-competes as a central factor. Indeed, this Note argues that courts should apply a presumption that workers beholden to non-competes are employees. Were courts to apply such a presumption, the pool of workers who are beholden to non-competes yet unprotected by the federal employment laws would decrease, thus affording greater legal protection to many non-compete-bound workers without a new law or regulation.
To read this Article, please click here: Dependent Contractors? The Case for Giving Non-Competes a Central Role in Worker-Classification Tests Under Federal Law
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