The Federal Trade Commission (FTC) is expected Tuesday to vote on a regulation banning “non-compete” clauses in employment contracts. Non-compete clauses are provisions in employment contracts that prohibit employees from working in that profession for a certain period of time or within a certain radius of the former employer. They have grown in popularity in recent years; FTC claims they now cover 30 million employees.

Employers usually argue that non-compete clauses are necessary because they invest in training and do not want employees then taking those skills for which they paid to competitors. Employees argue that non-compete clauses are punitive restrictions whose adverse post-employment impact is intended to dissuade workers from leaving low-wage jobs or bad working conditions.

Let’s be clear what non-compete clauses are not. They are not non-disclosure agreements, i.e., contractual prohibitions barring employees from revealing proprietary or trade secrets to competitors. This is not about a disgruntled Apple employee spilling the beans to Microsoft. It’s not even about the guy who quits McDonald’s and takes the secret sauce to Burger King, or Chick-Fil-A learning Colonel Sanders’ famous fried chicken recipe.

Nor are they ethical “non-conflict of interest” limits, e.g., “time-out” clauses that limit you from going to work for entities you once had to deal with or even regulate. It’s not about your leaving a government position, say, regulating military contracts to go work for Lockheed Martin or Boeing selling aircraft.

As The New York Times shows [here], it’s often about a hairdresser who worked for one beauty parlor in Toledo who’s now barred for a year from working for any other haircare establishment within fifteen miles of Toledo.

The FTC decision will involve some specialized legal questions, e.g., whether its powers in the laws under which FTC wants to authorize this regulation are actually broad enough to do so, or whether the potential scope and impact of the proposed regulation makes it a “major questions” issue that requires Congressional rather than administrative decision. There is also a subsidiarity question raised by the issue of federalism: Should these no-compete clauses be dealt with at the federal or rather the state levels? This essay prescinds from those questions.

I’ll limit my reflections to the core question of the proposed rule from an ethical and Catholic social thought analysis.

First, the question of employment. Catholic social thought stands for maximizing employment. Work is a basic human right, constitutive of the human person. It is part of the very order of creation even prior to the Fall. And, in a postlapsarian world where human beings especially need private property to ensure their rights, the modern economy — where wages are received from labor for another — should maximize employment opportunities.

Employers defending non-compete clauses usually cite worker training as justification for wanting to exclude their availability to competitors. The overarching principle under which I address that claim is the teaching of Laborem exercens [here] on the priority of labor over capital: money exists to enable work. Yes, labor should be profitable but labor still takes precedence over capital. People are more important than money.

Job training is important, but foreclosing one’s ability to hold future jobs seems unjust overreach. The American job market is plagued by too many employers seeking experienced and proficient employees for what are, essentially, entry-level jobs. It’s one thing to train an employee to execute specialized functions unique to your firm and your trade. It’s another to train an employee to do essentially basic functions that every other business in your line-of-work does, e.g., color hair. Either hire an experienced hair stylist at a higher wage for that first-tier work or hire an inexperienced hair stylist you train but at a lower up-front wage. And do not treat as “training” instruction in the particular procedures or preferential quirks of your establishment, e.g., the nurse on duty who gets the saline bag logs it in system A versus logbook B. Imposing non-compete rules on an employee going to an employer who won’t even use those procedures is simply retaliatory.

Most employers pay at least lip service to the claim that their workforce is their most important asset. If that is more than just lip service, the full spread of employee benefits would demonstrate that commitment. But if there is a track record of people regularly quitting an employer because pay structures are too low (e.g., they pay sub-minimum fixed pay but then force employees to “make it up” through tips or commissions) or working conditions bad (of which the turnover should be indicative), then the employer’s “commitment” to its workforce is debatable. Under such conditions, to retain employee “loyalty” by compelling him to stay despite wage or labor condition issues by practically taking away his ability to work elsewhere is unjust.

Yes, it is fair to ensure that an employer who has a unique “edge” or specialized product should be protected against losing it. But, as noted above, such protections are afforded more by non-disclosure of proprietary information agreements rather than non-compete agreements. Non-compete agreements, simply put, are not the instrument to accomplish that goal. As for the fact that the departing employee is aware of those “trade secrets,” non-disclosure can provide civil penalties against unlawful revelation. That said, life is such that things seen cannot be unseen; a specialized employee cannot be required to obtain a lobotomy because he was exposed to proprietary information.

So, all things considered, Catholic social thought would make a strong case for eliminating non-compete clauses, particularly in first- and second-tier or entry-level jobs. Their presence there, where skills are relatively standard, commonplace, and universally expected, seems not so much a necessity of “protecting” employer training expenses as protecting employers against paying wages and creating working conditions that retain those basic workers.