The Paradox of the Right to Contract: Noncompete Agreements as Thirteenth Amendment Violations

Employers in a variety of fields are increasingly imposing noncompete agreements on their workers as a condition of the workers’ at-will employment. These employees are working at or near minimum wage, in positions that require little or no advanced technical skills. Major news sources have highlighted this issue while covering recent employment litigation between Jimmy Johns and a pair of its former employees. In this litigation, two plaintiffs filed suit in federal court seeking injunctive relief and declaratory judgment invalidating the noncompete and confidentiality agreements that they signed with the sandwich maker. Granting defendant’s motion to dismiss, the Illinois District Court held that the plaintiffs lacked standing because they failed to allege any injury. This issue is not limited to one fast food chain. In jurisdictions where employment contracts are legally enforceable, there is a growing trend among employers to require low-wage, unskilled workers to execute noncompete agreements as a condition of their at-will employment. This Article argues that contemporary noncompete agreements between employers and workers earning low wages while performing unskilled labor are a violation of the Thirteenth Amendment. Part I discusses the origin and purpose of restrictive post-employment covenants and identifies the type of noncompete agreement at issue. Part II examines the original scope and intent of the Thirteenth Amendment and related legislation. This Part also discusses the types of imbalanced work conditions denounced by the Reconstruction Era Congress as “perpetuations of slavery.” It also discusses the benefits of free, or non-enslaved, labor identified by Congress while illustrating why contemporary noncompete agreements between employers and unskilled workers are outside of that original purpose. Part III discusses four relevant judicial opinions regarding noncompete agreements to illustrate that, at one point, the judiciary correctly interpreted and applied the laws to employment-related disputes as Congress intended. The Article concludes by arguing that courts should re-examine the Thirteenth Amendment and its historical context to hold unconstitutional noncompete agreements for low-wage, at-will, and unskilled employees