The Future of Work and U.S. Public Opinion on Noncompete Law: Evidence from a Conjoint Experiment

Abstract

Although policymakers have recently shown a keen interest in noncompete reform, a gap exists in the literature concerning what the U.S. public's preferences are regarding noncompetes. Therefore, this article presents the empirical findings of a nationally-representative survey of the American public on the noncompete law governing employees. Based on the results of a conjoint experiment within the survey, this article finds that the U.S public prefers that noncompetes be used to protect any types of confidential information, rather than simply customer lists or employee training investments. Additionally, the findings do not show clear support either for or against noncompete exemptions based on an employee's earnings level. However, this article finds that the U.S. public prefers a noncompete exemption for physicians, a shorter maximum duration for the noncompete period, and a legal mandate that departing employees subject to noncompetes receive some compensation from the employer during the noncompete period. Consequently, this article argues that employers should engage in greater self-regulation if they would like to mitigate the risk not only that legislators will respond to public sentiment favoring more employee-friendly policies by enacting a total or near-total ban on noncompetes, but also that judges will find the noncompetes to be unreasonable.