#noncompetes

If Hollywood and tech are examples of industries that "can't attract investment," then we should be shooting for every sector of the American economy to be so starved for capital. Silicon Valley's origin story is based on the ability of key workers at knowledge-intensive firms to quit their jobs and go to work for a direct competitor: the first Silicon Valley company was Shockley Semiconductors, founded by William Shockley, who won the Nobel Prize for inventing silicon transistors.

Shockley literally put the "silicon" in Silicon Valley, but he never shipped a working chip, because he was a deranged, paranoid eugenicist who ran such a dysfunctional company that eight of his top engineers quit to found a rival company, Fairchild Semiconductor. Then two of the "Traitorous Eight" quit the Fairchild to start Intel, and the year after, another Fairchild employee quit to start AMD:

https://pluralistic.net/2021/10/24/the-traitorous-eight-and-the-battle-of-germanium-valley/

This never stopped. Woz quit HP and Jobs quit Atari to start Apple and the tradition of extremely well-capitalized companies being founded by key employees who quit market-leading firms to compete with their old bosses continues to this day. There are many things we can say about AI, but no one will claim that AI companies – especially not those in California, where noncompetes are banned – have trouble attracting investment. Half of the leading AI companies were founded by people who couldn't stand working for Sam Altman at Openai and quit to found a competitor. Just last week, Altman flipped out because Mark Zuckerberg poached his key scientists to work on competing products at Meta:

https://fortune.com/2025/06/28/meta-four-openai-researchers-superintelligence-team-ai-talent-competition/

Knowledge-intensive industries are provably compatible with a system of free labor where workers can work for anyone they want. You know who understands this? The lawyers who draw up employment contracts with noncompete clauses in them: the American Bar Association bans noncompetes for lawyers! Every law firm in America operates without noncompetes!

Everyone hates noncompetes. They are bullshit, and only get worse with time, as the largest companies in America metastasize into sprawling conglomerates, they compete with everyone. Who isn't a competitor of Amazon's?

https://pluralistic.net/2022/02/02/its-the-economy-stupid/#neofeudal

Biden's antitrust enforcers hated noncompetes, too. Former FTC chair Lina Khan held listening tours and solicited comments to hear workers stories about noncompetes, developing a record that she used to create a rule that banned noncompetes nationwide:

https://pluralistic.net/2024/04/25/capri-v-tapestry/#aiming-at-dollars-not-men

America's oligarchs weren't happy. They sued to overturn the rule, and got a nationwide injunction (you know, those things that Trump's illegitimate Supreme Court claims are unenforceable) that suspended the FTC rule pending a full hearing.

It's clear that Trump's FTC is going to walk away from this fight and let the rule die. Trumpism is wildly unpopular, and this is no exception. Americans overwhelmingly support banning noncompetes, but Trump's richest donors are terrified of another Great Resignation and want to keep us indentured to their shitty companies, so Trump's FTC will sell us all out.

But that's not the end of things. As David Dayen writes for The American Prospect, states and local governments can pass their own noncompete bans, and they are:

https://prospect.org/labor/2025-07-02-ftc-noncompete-state-regulation-workers-wages/

Take NYC mayor-in-waiting Zohran Mamdani: unlike Trump (and the Democratic Party's billionaire wing), Mamdani campaigned by offering to create policies that are popular, including a ban on noncompetes. New York City has two distinct groups of workers who are screwed over by noncompetes. One of those groups is Wall Street finance bros, who work for some of the most legendarily toxic assholes to ever draw breath, and are overwhelming bound by noncompetes that will all become null and void the day Mamdani dons his sash.

The other group of workers Mamdani will liberate are those at the very bottom of the income distribution, from fast food workers to gig workers to doormen, who are victims of some of the dirtiest noncompete clauses in America, including "bondage fees":

https://pluralistic.net/2023/04/21/bondage-fees/#doorman-building

Big cities are filled with workers who are getting screwed by noncompetes and every city government has it in their power to liberate every one of those workers (who are also voters).

States can do even better. There are already four states that ban noncompetes, two of them blood red: California, Minnesota, North Dakota, and Oklahoma. Other states place significant restrictions on noncompetes, including Washington, Colorado, Illinois, Virginia, Maryland, Rhode Island, New Hampshire, and Maine. Nevada bans noncompetes for hourly workers, Idaho only allows them for "key employees"; Louisiana limits noncompetes to two years, and NJ bans noncompetes for domestic workers.

Up and down the country, in states blue and red, noncompetes are unpopular, and banning noncompetes is popular:

https://www.ipsos.com/en-us/majority-americans-support-ftc-ruling-would-ban-non-compete-agreements

Oregon just banned noncompetes for doctors and other health workers, as part of a sweeping, bipartisan law that banned the "corporate practice of medicine":

https://pluralistic.net/2025/06/20/the-doctor-will-gouge-you-now/#states-rights

Oregon's in good company: noncompetes are banned in the health sector in 32 states, including Arkansas, Indiana and Colorado.

Noncompetes are an integral part of the conservative project, which is the substitution of individual power for democratic choice. As Dan Savage puts it, the GOP agenda is "Husbands you can't leave [ed: ending no-fault divorce], pregnancies you can't prevent or terminate [ed: banning contraception and abortion], politicians you can't vote out of office [ed: gerrymandering and voter suppression."

Add to that: jobs you can't quit.

It's not just noncompetes that lock workers to shitty bosses. When Biden's FTC investigated the issue, they revealed a widespread practice called "training repayment agreement provision," (TRAPs) that puts workers on the hook for thousands of dollars if they quit or get fired:

https://pluralistic.net/2022/08/04/its-a-trap/#a-little-on-the-nose

A TRAPped worker – often a pet-groomer at a private equity-owned giant like Petsmart – is charged $5,500 or more for three weeks of "training" that actually amount to one or two weeks of sweeping up pet-hair. But if they leave or get fired in the next three years, they have to pay back that whole amount:

https://pluralistic.net/2022/08/04/its-a-trap/#a-little-on-the-nose

A closely related concept is "bondage fees," which have been imposed on whole classes of workers, like doormen in NYC apartment buildings:

https://pluralistic.net/2023/04/21/bondage-fees/#doorman-building

These fees trap workers in dead-end jobs by forcing anyone who hires them away to pay massive fees to their former employers. It's just another way to lock workers to businesses.

The irony here is that conservatives claim to worship "voluntarism" and "free choice," and insist that the virtue of markets is that they "aggregate price signals" so that companies can respond to these signals by efficiently matching demand to supply.

But though conservatives say they worship free choice as an engine of economic efficiency, they understand that their ideas are so unpopular that they can only succeed if people are coerced into adopting them, hence voter suppression, gerrymandering, noncompetes, and other heads-I-win/tails-you-lose propositions.

Noncompetes aren't about preventing the loss of IP – they're about preventing the loss of process knowledge, the know-how to turn ideas into products and services. Bosses love IP, because it can be alienated, hoarded and sold, while process knowledge is ineluctably vested in the bodies, minds and relations of workers. No IP law can keep employees from taking process knowledge with them on their way out the door, so bosses want to ban them from leaving:

https://pluralistic.net/2025/09/08/process-knowledge/#dance-monkey-dance

Biden's FTC banned noncompetes nationwide, for nearly every category of employment, deeming them an "unfair method of competition":

https://www.ftc.gov/news-events/news/press-releases/2023/03/ftc-extends-public-comment-period-its-proposed-rule-ban-noncompete-clauses-until-april-19

FTC economists estimated that killing noncompetes would result in $400b in wage gains for the American workforce over the next decade, as good workers migrated to good bosses.

Of course this was challenged by the business lobby, which sued to get the rule overturned. Trump's FTC has not only declined to defend the rule in court, they've also decided to stop trying to enforce it.

Trump is now the king of wage-theft, and MAGA is a relentless engine of enshittification. After all, the thesis of enshittification is that companies make their products and practices worse for suppliers, users and business customers only when they calculate that they can do so without facing punishment – from regulators, competitors, or workers.

Trump's regulators are all either comatose or so captured they wear gimpsuits and leashes in public. They're not keeping companies in line. And his antitrust shops have turned into pay-for-play operations, where a $1m payment to a MAGA influencer gets your case dropped:

https://www.thebignewsletter.com/p/an-attempted-coup-at-the-antitrust

Trump neutered the National Labor Relations Board and now he's revived indentured servitude nationwide, formalizing the idea of government-backed jobs you can't quit.

If you can't quit your job or vote our your politicians, why wouldn't your boss or your elected representative just relentless fuck you over? Not merely for sadism's sake (though sadism undoubtedly plays a part here), but simply to make things better for themselves by making things worse for you? It's exactly the same logic of platform lock-in: once you can't leave, they don't have to keep you happy.

Formalizing the legality of noncompetes will only lead to their monotonic spread. When Antonin Scalia greenlit binding arbitration waivers in consumer contracts, only a tiny number of companies used them, forcing customers to sign away their right to sue them no matter how badly, negligently or criminally they behaved. Today, binding arbitration has expanded into every kind of contract, even to the point where groovy, open source, decentralized, federated social media platforms are forcing it on their users:

https://pluralistic.net/2025/08/15/dogs-breakfast/#by-clicking-this-you-agree-on-behalf-of-your-employer-to-release-me-from-all-obligations-and-waivers-arising-from-any-and-all-NON-NEGOTIATED-agreements

Same for noncompetes: as private equity rolls up whole sectors – funeral homes, pet groomers, hospices – they will stuff noncompetes into the contracts of every employer in each industry, so no matter where a worker applies for a job, they'll have to sign a noncompete. Why wouldn't they? If workers can't leave, they'll accept worse working conditions and lower pay. The best workers will be stuck with the worst employers.

And despite owing their existence to bans on noncompetes Silicon Valley and Hollywood will happily cram noncompetes down their workers' throats. If you doubt it, just read up on the "no poach" scandal, where the biggest tech and movie companies entered into a criminal conspiracy not to hire away each others' employees:

https://en.wikipedia.org/wiki/High-Tech_Employee_Antitrust_Litigation

The conservative future, folks: jobs you can't quit, politicians you can't vote out of office, husbands you can't divorce, and pregnancies you can't prevent or terminate.

Click here to pre-order my next book, ENSHITTIFICATION: WHY EVERYTHING SUDDENLY GOT WORSE AND WHAT TO DO ABOUT IT

If you'd like an essay-formatted version of this post to read or share, here's a link to it on pluralistic.net, my surveillance-free, ad-free, tracker-free blog:

The article begins with a litany of tech billionaires who've gone an all-out, public assault on Khan's leadership – billionaires who stand to personally lose hundreds of millions of dollars from her agency's principled, vital antitrust work, but who cloak their objection to Khan in rhetoric about defending the American economy. In public, some of these billionaires are icily polite, but many of them degenerate into frothing, toddler-grade name-calling, like IAB's Barry Diller, who called her a "dope" and Musk lickspittle Jason Calacanis, who called her an all-caps COMMUNIST and a LUNATIC.

The overall vibe from these wreckers? "How dare the FTC do things?!"

And you know, they have a point. For decades, the FTC was – in the quoted words of Tim Wu – "a very hardworking agency that did nothing." This was the period when the FTC targeted low-level scammers while turning a blind eye to the monsters that were devouring the US economy. In part, that was because the FTC had been starved of budget, trapping them in a cycle of racking up easy, largely pointless "wins" against penny-ante grifters to justify their existence, but never to the extent that Congress would apportion them the funds to tackle the really serious cases (if this sounds familiar, it's also the what happened during the long period when the IRS chased middle class taxpayers over minor filing errors, while ignoring the billionaires and giant corporations that engaged in 7- and 8-figure tax scams).

But the FTC wasn't merely underfunded: it was timid. The FTC has extremely broad enforcement and rulemaking powers, which most sat dormant during the neoliberal era:

https://pluralistic.net/2023/01/10/the-courage-to-govern/#whos-in-charge

The Biden administration didn't merely increase the FTC's funding: in choosing Khan to helm the organization, they brought onboard a skilled technician, who was both well-versed in the extensive but unused powers of the agency and determined to use them:

https://pluralistic.net/2022/10/18/administrative-competence/#i-know-stuff

But Khan's didn't just rely on technical chops and resources to begin the de-olicharchification of the US economy: she built a three-legged stool, whose third leg is narrative. Khan's signature is her in-person and remote "listening tours," where workers who've been harmed by corporate power get to tell their stories. Bloomberg recounts the story of Deborah Brantley, who was sexually harassed and threatened by her bosses at Kavasutra North Palm Beach. Brantley's bosses touched her inappropriately and "joked" about drugging her and raping her so she "won’t be such a bitch and then maybe people would like you more."

When Brantley finally quit and took a job bartending at a different business, Kavasutra sued her over her noncompete clause, alleging an "irreparable injury" sustained by having one of their former employees working at another business, seeking damages and fees.

The vast majority of the 30 million American workers who labor under noncompetes are like Brantley, low-waged service workers, especially at fast-food restaurants (so Wendy's franchisees can stop minimum wage cashiers from earning $0.25/hour more flipping burgers at a nearby McDonald's). The donor-class indenturers who defend noncompetes claim that noncompetes are necessary to protect "innovative" businesses from losing their "IP." But of course, the one state where no workers are subject to noncompetes is California, which bans them outright – the state that is also home to Silicon Valley, an IP-heave industry that the same billionaires laud for its innovations.

After that listening tour, Khan's FTC banned noncompetes nationwide:

https://pluralistic.net/2024/04/25/capri-v-tapestry/#aiming-at-dollars-not-men

Only to have a federal judge in Texas throw out their ban, a move that will see $300b/year transfered from workers to shareholders, and block the formation of 8,500 new US businesses every year:

https://www.npr.org/2024/08/21/g-s1-18376/federal-judge-tosses-ftc-noncompetes-ban

Notwithstanding court victories like Epic v Google and DoJ v Google, America's oligarchs have the courts on their side, thanks to decades of court-packing planned by the Federalist Society and executed by Senate Republicans and Reagan, Bush I, Bush II, and Trump. Khan understands this; she told Bloomberg that she's a "close student" of the tactics Reagan used to transform American society, admiring his effectiveness while hating his results. Like other transformative presidents, good and bad, Reagan had to fight the judiciary and entrenched institutions (as did FDR and Lincoln). Erasing Reagan's legacy is a long-term project, a battle of inches that will involve mustering broad political support for the cause of a freer, more equal America.

Neither Biden nor Khan are responsible for the groundswell of US – and global – movement to euthanize our rentier overlords. This is a moment whose time has come; a fact demonstrated by the tens of thousands of working Americans who filled the FTC's noncompete docket with outraged comments. People understand that corporate looters – not "the economy" or "the forces of history" – are the reason that the businesses where they worked and shopped were destroyed by private equity goons who amassed intergenerational, dynastic fortunes by strip-mining the real economy and leaving behind rubble.

Like the billionaires publicly demanding that Harris fire Khan, private equity bosses can't stop making tone-deaf, guillotine-conjuring pronouncements about their own virtue and the righteousness of their businesses. They don't just want to destroy the world - they want to be praised for it:/p>

"Private equity’s been a great thing for America" -Stephen Pagliuca, co-chairman of Bain Capital;

"We are taught to judge the success of a society by how it deals with the least able, most vulnerable members of that society. Shouldn’t we judge a society by how they treat the most successful? Do we vilify, tax, expropriate and condemn those who have succeeded, or do we celebrate economic success as the engine that propels our society toward greater collective well-being?" -Marc Rowan, CEO of Apollo

"Achieve life-changing money and power," -Sachin Khajuria, former partner at Apollo

Meanwhile, the "buy, strip and flip" model continues to chew its way through America. When PE buys up all the treatment centers for kids with behavioral problems, they hack away at staffing and oversight, turning them into nightmares where kids are routinely abused, raped and murdered:

https://www.nbcnews.com/news/us-news/they-told-me-it-was-going-be-good-place-allega-tions-n987176

When PE buys up nursing homes, the same thing happens, with elderly residents left to sit in their own excrement and then die:

https://www.politico.com/news/magazine/2023/12/24/nursing-homes-private-equity-fraud-00132001

Writing in The Guardian, Alex Blasdel lays out the case for private equity as a kind of virus that infects economies, parasitically draining them of not just the capacity to provide goods and services, but also of the ability to govern themselves, as politicians and regulators are captured by the unfathomable sums that PE flushes into the political process:

https://www.theguardian.com/business/2024/oct/10/slash-and-burn-is-private-equity-out-of-control

Now, the average worker who's just lost their job may not understand "divi recaps" or "2-and-20" or "carried interest tax loopholes," but they do understand that something is deeply rotten in the world today.

What happens to that understanding is a matter of politics. The Republicans – firmly affiliated with, and beloved of, the wreckers – have chosen an easy path to capitalizing on the rising rage. All they need to do is convince the public that the system is irredeemably corrupt and that the government can't possibly fix anything (hence Reagan's asinine "joke": "the nine most terrifying words in the English language are: 'I'm from the Government, and I'm here to help'").

This is a very canny strategy. If you are the party of "governments are intrinsically corrupt and incompetent," then governing corruptly and incompetently proves your point. The GOP strategy is to create a nation of enraged nihilists who don't even imagine that the government could do something to hold their bosses to account – not for labor abuses, not for pollution, not for wage theft or bribery.

The fact that successive neoliberal governments – including Democratic administrations – acted time and again to bear out this hypothesis makes it easy for this kind of nihilism to take hold.

Far-right conspiracies about pharma bosses colluding with corrupt FDA officials to poison us with vaccines for profit owe their success to the lived experience of millions of Americans who lost loved ones to a conspiracy between pharma bosses and corrupt officials to poison us with opioids.

Unhinged beliefs that "they" caused the hurricanes tearing through Florida and Georgia and that Kamala Harris is capping compensation to people who lost their homes are only credible because of murderous Republican fumble during Katrina; and the larcenous collusion of Democrats to help banks steal Americans' homes during the foreclosure crisis, when Obama took Tim Geithner's advice to "foam the runway" with the mortgages of everyday Americans who'd been cheated by their banks:

https://www.salon.com/2014/05/14/this_man_made_millions_suffer_tim_geithners_sorry_legacy_on_housing/

If Harris gives in to billionaire donors and fires Khan and her fellow trustbusters, paving the way for more looting and scamming, the result will be more nihilism, which is to say, more electoral victories for the GOP. The "government can't do anything" party already exists. There are no votes to be gained by billing yourself as the "we also think governments can't do anything" party.

In other words, a world where Khan doesn't run the FTC is a world where antitrust continues to gain ground, but without taking Democrats with it. It's a world where nihilism wins.

There's factions of the Democratic Party who understand this. AOC warned party leaders that, "Anyone goes near Lina Khan and there will be an out and out brawl":

https://twitter.com/AOC/status/1844034727935988155

And Bernie Sanders called her "the best FTC Chair in modern history":

https://twitter.com/SenSanders/status/1843733298960576652

In other words: Lina Khan as a posse.

Tor Books as just published two new, free LITTLE BROTHER stories: VIGILANT, about creepy surveillance in distance education; and SPILL, about oil pipelines and indigenous landback.

If you'd like an essay-formatted version of this post to read or share, here's a link to it on pluralistic.net, my surveillance-free, ad-free, tracker-free blog:

Will they win? It's hard to say. Despite what you may have heard, the case against the FTC order is very weak, as Matt Stoller explains here:

https://www.thebignewsletter.com/p/ftc-enrages-corporate-america-by

The FTC's statutory authority to block noncompetes comes from Section 5 of the FTC Act, which bans "unfair methods of competition" (hard to imagine a less fair method than indenturing your workers). Section 6(g) of the Act lets the FTC make rules to enforce Section 5's ban on unfairness. Both are good law – 6(g) has been used many times (26 times in the five years from 1968-73 alone!).

The DC Circuit court upheld the FTC's right to "promulgate rules defining the meaning of the statutory standards of the illegality the Commission is empowered to prevent" in 1973, and in 1974, Congress changed the FTC Act, but left this rulemaking power intact.

The lawyer suing the FTC – Anton Scalia's larvum, a pismire named Eugene Scalia – has some wild theories as to why none of this matters. He says that because the law hasn't been enforced since the ancient days of the (checks notes) 1970s, it no longer applies. He says that the mountain of precedent supporting the FTC's authority "hasn't aged well." He says that other antitrust statutes don't work the same as the FTC Act. Finally, he says that this rule is a big economic move and that it should be up to Congress to make it.

Stoller makes short work of these arguments. The thing that tells you whether a law is good is its text and precedent, "not whether a lawyer thinks a precedent is old and bad." Likewise, the fact that other antitrust laws is irrelevant "because, well, they are other antitrust laws, not this antitrust law." And as to whether this is Congress's job because it's economically significant, "so what?" Congress gave the FTC this power.

Now, none of this matters if the Supreme Court strikes down the rule, and what's more, if they do, they might also neuter the FTC's rulemaking power in the bargain. But again: so what? How is it better for the FTC to do nothing, and preserve a power that it never uses, than it is for the Commission to free the 35-40 million American workers whose bosses get to use the US court system to force them to do a job they hate?

The FTC's rule doesn't just ban noncompetes – it also bans TRAPs ("training repayment agreement provisions"), which require employees to pay their bosses thousands of dollars if they quit, get laid off, or are fired:

https://pluralistic.net/2022/08/04/its-a-trap/#a-little-on-the-nose

The FTC's job is to protect Americans from businesses that cheat. This is them, doing their job. If the Supreme Court strikes this down, it further delegitimizes the court, and spells out exactly who the GOP works for.

This is part of the long history of antitrust and labor. From its earliest days, antitrust law was "aimed at dollars, not men" – in other words, antitrust law was always designed to smash corporate power in order to protect workers. But over and over again, the courts refused to believe that Congress truly wanted American workers to get legal protection from the wealthy predators who had fastened their mouth-parts on those workers' throats. So over and over – and over and over – Congress passed new antitrust laws that clarified the purpose of antitrust, using words so small that even federal judges could understand them:

https://pluralistic.net/2023/04/14/aiming-at-dollars/#not-men

After decades of comatose inaction, Biden's FTC has restored its role as a protector of labor, explicitly tackling competition through a worker protection lens. This week, the Commission blocked the merger of Capri Holdings and Tapestry Inc, a pair of giant conglomerates that have, between them, bought up nearly every "affordable luxury" brand (Versace, Jimmy Choo, Michael Kors, Kate Spade, Coach, Stuart Weitzman, etc).

You may not care about "affordable luxury" handbags, but you should care about the basis on which the FTC blocked this merger. As David Dayen explains for The American Prospect: 33,000 workers employed by these two companies would lose the wage-competition that drives them to pay skilled sales-clerks more to cross the mall floor and switch stores:

https://prospect.org/economy/2024-04-24-challenge-fashion-merger-new-antitrust-philosophy/

In other words, the FTC is blocking a $8.5b merger that would turn an oligopoly into a monopoly explicitly to protect workers from the power of bosses to suppress their wages. What's more, the vote was unanimous, include the Commission's freshly appointed (and frankly, pretty terrible) Republican commissioners:

https://www.ftc.gov/news-events/news/press-releases/2024/04/ftc-moves-block-tapestrys-acquisition-capri

A lot of people are (understandably) worried that if Biden doesn't survive the coming election that the raft of excellent rules enacted by his agencies will die along with his presidency. Here we have evidence that the Biden administration's anti-corporate agenda has become institutionalized, acquiring a bipartisan durability.

And while there hasn't been a lot of press about that anti-corporate agenda, it's pretty goddamned huge. Back in 2021, Tim Wu (then working in the White wrote an executive order on competition that identified 72 actions the agencies could take to blunt the power of corporations to harm everyday Americans:

https://www.eff.org/deeplinks/2021/08/party-its-1979-og-antitrust-back-baby

Biden's agency heads took that plan and ran with it, demonstrating the revolutionary power of technical administrative competence and proving that being good at your job is praxis:

https://pluralistic.net/2022/10/18/administrative-competence/#i-know-stuff

In just the past week, there's been a storm of astoundingly good new rules finalized by the agencies:

A minimum staffing ratio for nursing homes;

The founding of the American Climate Corps;

A guarantee of overtime benefits;

A ban on financial advisors cheating retirement savers;

Medical privacy rules that protect out-of-state abortions;

A ban on junk fees in mortgage servicing;

Conservation for 13m Arctic acres in Alaska;

Classifying "forever chemicals" as hazardous substances;

A requirement for federal agencies to buy sustainable products;

Closing the gun-show loophole.

That's just a partial list, and it's only Thursday.

Why the rush? As Gerard Edic writes for The American Prospect, finalizing these rules now protects them from the Congressional Review Act, a gimmick created by Newt Gingrich in 1996 that lets the next Senate wipe out administrative rules created in the months before a federal election:

https://prospect.org/politics/2024-04-23-biden-administration-regulations-congressional-review-act/

In other words, this is more dazzling administrative competence from the technically brilliant agencies that have labored quietly and effectively since 2020. Even laggards like Pete Buttigieg have gotten in on the act, despite a very poor showing in the early years of the Biden administration:

https://pluralistic.net/2023/02/11/dinah-wont-you-blow/#ecp

Despite those unpromising beginnings, the DOT has gotten onboard the trains it regulates, and passed a great rule that forces airlines to refund your money if they charge you for services they don't deliver:

https://www.whitehouse.gov/briefing-room/statements-releases/2024/04/24/fact-sheet-biden-harris-administration-announces-rules-to-deliver-automatic-refunds-and-protect-consumers-from-surprise-junk-fees-in-air-travel/

The rule also bans junk fees and forces airlines to compensate you for late flights, finally giving American travelers the same rights their European cousins have enjoyed for two decades.

It's the latest in a string of muscular actions taken by the DOT, a period that coincides with the transfer of Jen Howard from her role as chief of staff to FTC chair Lina Khan to a new gig as the DOT's chief of competition enforcement:

https://prospect.org/infrastructure/transportation/2024-04-25-transportation-departments-new-path/

Under Howard's stewardship, the DOT blocked the merger of Spirit and Jetblue, and presided over the lowest flight cancellation rate in more than decade:

https://www.transportation.gov/briefing-room/2023-numbers-more-flights-fewer-cancellations-more-consumer-protections

All that, along with a suite of protections for fliers, mark a huge turning point in the US aviation industry's long and worsening abusive relationship with the American public. There's more in the offing, too including a ban on charging families extra for adjacent seats, rules to make flying with wheelchairs easier, and a ban on airlines selling passenger's private information to data brokers.

There's plenty going on in the world – and in the Biden administration – that you have every right to be furious and/or depressed about. But these expert agencies, staffed by experts, have brought on a tsunami of rules that will make every working American better off in a myriad of ways. Those material improvements in our lives will, in turn, free us up to fight the bigger, existential fights for a livable planet, free from genocide.

It may not be a good time to be alive, but it's a much better time than it was just last week.

And it's only Thursday.

If you'd like an essay-formatted version of this post to read or share, here's a link to it on pluralistic.net, my surveillance-free, ad-free, tracker-free blog:

But just as remarkable as the substance of this new law is the path it took – a path that runs through a new sensibility, a new vibe, that is more powerful than mere political or legal procedure. The story is masterfully told in The American Prospect by veteran labor writer Harold Meyerson:

https://prospect.org/labor/2023-09-13-half-million-california-workers-get-raise/

The story starts with Governor Newsom signing a bill to create a new statewide labor-business board to mediate between workers and bosses, with the goal of elevating the working conditions of the state's large, minimum-wage workforce. The passage of this law triggered howls of outrage from the state's fast-food industry, who pledged to spend $200m to put forward a ballot initiative to permanently kill the labor-business board.

This is a familiar story. In 2019, California's state legislature passed AB-5, a bill designed to end the gig-work fiction that people whose boss is an algorithm are actually "independent businesses," rather than employees. AB5 wasn't perfect – it swept up all kinds of genuine freelancers, like writers who contributed articles to many publications – but the response wasn't aimed at fixing the bad parts. It was designed to destroy the good parts.

After AB-5, Uber and Lyft poured more than $200m into Prop 22, a ballot initiative designed to permanently bar the California legislature from passing any law to protect "gig workers." Prop 22's corporate backers flooded the state with disinformation, and procured a victory in 2020. The aftermath was swift and vicious, with Prop 22 used as cover in mass-firings of unionized workers across the state's workforce:

https://pluralistic.net/2021/01/05/manorialism-feudalism-cycle/#prop22

Workers and the politicians who defend them were supposed to be crushed by Prop 22. Its message was "there is no alternative." "Abandon hope all ye who enter here." "Resistance is futile." Prop 22 was worth spending $200m on because it wouldn't just win this fight – it would win all fights, forever.

But that's not what happened. When the fast-food barons announced that they were going to pump another $200m into a state ballot initiative to kill fair wages for food service workers, they got a hell of a surprise. SEIU – a union that has long struggled to organize fast-food workers – collaborated with progressive legislators to introduce a pair of new, even further-reaching bills.

One bill would have made the corporate overseers of franchise businesses jointly liable for lawbreaking by franchisees – so if a McDonald's restaurant owner stole their employees' wages, McDonalds corporate would also be on the hook for the offense. The second bill would restore funding and power to the state Industrial Welfare Commission, which once routinely intervened to set wages and working standards in many state industries:

https://www.gtlaw-laborandemployment.com/2023/08/the-california-iwc-whats-old-is-new-again/

Fast-food bosses fucked around, and boy did they find out. Funding for the IWC passed the state budget, and the franchisee joint liability is set to pass the legislature this week. The fast-food bosses cried uncle and begged Newsom's office for a deal. In exchange for defunding the IWC and canceling the vote on the liability bill, the industry has agreed to an hourly wage increase for the state's 550,000 fast-food workers, from $15.50 to $20, taking effect in April.

The deal also includes annual raises of either 3.5% or the real rise in cost of living. It keeps the labor-management council that the original bill created (the referendum on killing that council has been cancelled). The council will include two franchisees, two fast food corporate reps, two union reps, two front-line fast-food workers and a member of the public. It will have the power to direct the state Department of Labor to directly regulate working conditions in fast-food restaurants, from health and safety to workplace violence.

It's been nearly a century since business/government/labor boards like this were commonplace. The revival is a step on the way to bringing back the practice of sectoral bargaining, where workers set contracts for all employers in an industry. Sectoral bargaining was largely abolished through the dismantling of the New Deal, though elements of it remain. Entertainment industry unions are called "guilds" because they bargain with all the employers in their sector – which is why all of the Hollywood studios are being struck by SAG-AFTRA and the WGA.

So what changed between 2020 – when rideshare bosses destroyed democratic protections for workers by flooding the zone with disinformation to pass Prop 22 – and 2023, when the fast food bosses folded like a cheap suit? It wasn't changes to the laws governing ballot initiatives, nor was it a lack of ready capital for demolishing worker rights. Fast food executives weren't visited by three ghosts in the night who convinced them to care for their workers. Their hearts didn't grow by three sizes.

What changed was the vibe. The Hot Labor Summer was a rager, and it's not showing any signs of slowing. Obviously that's true in California, where nurses and hotel workers are also striking, and where strikebreaking companies like Instawork ("Uber for #scabs") attract swift regulatory sanction, rather than demoralized capitulation:

https://pluralistic.net/2023/07/30/computer-says-scab/#instawork

The hot labor summer wasn't a season – it was a turning point. Everyone's forming unions. Think of Equity Strip NoHo, the first strippers' union in a generation, which won recognition from their scumbag bosses at North Hollywood's Star Garden Club, who used every dirty trick to kill workplace democracy.

The story of the Equity Strippers is amazing. Two organizers, Charlie and Lilith, appeared on Adam Conover's Factually podcast to describe the incredible creativity and solidarity they used to win recognition, and the continuing struggle to get a contract out of their bosses, who are still fucking around and assuming they will not find out:

https://www.youtube.com/watch?v=_fgXihmHIZk

Like the fast-food bosses, the Star Garden's owners are in for a surprise. One of the most powerful elements of the Equity Strippers' story is the solidarity of their customers. Star Garden's owners assumed that their clientele were indiscriminate, horny assholes who didn't care about the wellbeing of the workers they patronized, and would therefore cross a picket-line because parts is parts.

Instead, the bar's clientele sided with the workers. People everywhere are siding with workers. A decade ago, when video game actors voted on a strike, the tech workers who coded the games were incredibly hostile to them. "Why should you get residuals for your contribution to this game when we don't?"

But SAG-AFTRA members who provide voice acting for games just overwhelmingly voted to authorize a strike, and this time the story is very different. This time, tech workers are ride-or-die for their comrades in the sound booths:

https://www.latimes.com/entertainment-arts/business/story/2023-09-13/video-game-voice-actor-sag-strike-interactive-agreement-actors-strike

What explains the change in tech workers' animal sentiments? Well, on the one hand, labor rights are in the air. The decades of cartoonish, lazy dismissals of labor struggles have ended. And on the other hand, tech workers have been proletarianized, with 260,000 layoffs in the sector, including 12,000 layoffs at Google that came immediately after a stock buyback that would have paid those 12,000 salaries for the next 27 years:

https://doctorow.medium.com/the-proletarianization-of-tech-workers-ad0a6b09f7e6

Larry Lessig once laid out a theory of change that holds that our society is governed by four forces: law (what's legal), norms (what's socially acceptable), markets (what's profitable) and code (what's technologically possible):

https://cs.stanford.edu/people/eroberts/cs181/projects/2010-11/CodeAndRegulation/about.html

These four forces interact. When queer relationships were normalized, it made it easier to legalize them, too – and then the businesses that marriage equality became both a force for more normalization and legal defense.

When Lessig formulated this argument, much of the focus was on technology – how file-sharing changed norms, which changed law. But as the decades passed, I've come to appreciate what the argument says about norms, the conversations we have with one another.

Neoliberalism wants you to think that you're an individual, not a member of a polity. Neoliberalism wants you to bargain with your boss as a "free agent," not a union member. It wants you to address the climate emergency by recycling more carefully – not by demanding laws banning single-use plastics. It wants you to fight monopolies by shopping harder – not by busting trusts.

But that's not what we're doing – not anymore. We're forming unions. We're demanding a Green New Deal. And we're busting some trusts. The DoJ Antitrust Division case against Google is the (first) trial of the century, reviving the ancient and noble practice of fighting monopolies with courts, not empty platitudes.

The trial is incredible, and Yosef Weitzman's reporting on Big Tech On Trial is required reading. I'm following it closely (thankfully, there's a fulltext RSS feed):

https://www.bigtechontrial.com/p/what-makes-google-great

The neoliberal project of instilling learned helplessness about corporate power has hit the wall, and it's wrecked. The same norms that made us furious enough to put Google on trial are the norms that made us angry – not cynical – about Clarence Thomas's bribery scandals:

https://pluralistic.net/2023/04/06/clarence-thomas/#harlan-crow

And they're the same norms that made us support our striking comrades, from hotel housekeepers to Hollywood actors, from strippers to Starbucks baristas:

https://thetyee.ca/News/2023/09/13/Starbucks-Workers-Back-At-Strike/

Yes, Starbucks baristas. The Starbucks unions that won hard-fought recognition drives are now fighting the next phase of corporate fuckery: Starbucks corporate's refusal to bargain for a contract. Starbucks is betting that if they just stall long enough, the workers who support the union will move on and they'll be able to go back to abusing their workers without worrying about a union.

They're fucking around, and they're finding out. Starbucks workers at two shops in British Columbia – Clayton Crossing in Surrey and Valley Centre in Langley – have authorized strikes with a 91% majority:

https://thetyee.ca/News/2023/09/13/Starbucks-Workers-Back-At-Strike/

Where did the guts to do this come from? Not from labor law, which remains disgustingly hostile to workers (though that's changing, as we'll see below). It came from norms. It came from getting pissed off and talking about it. Shouting about it. Arguing about it.

Laws, markets and code matter, but they're nothing without norms. That's why Uber and Lyft were willing to spend $200m to fight fair labor practices. They didn't just want to keep their costs low – they wanted to snuff out the vibe, the idea that workers deserve a fair deal.

They failed. The idea didn't die. It thrived. It merged with the idea that corporations and the wealthy corrupt our society. It was joined by the idea that monopolies harm us all. They're losing. We're winning.

The BC Starbucks workers secured 91% majorities in their strike votes. This is what worker power looks like. As Jane McAlevey writes in her Collective Bargain, these supermajorities – ultramajorities – are how we win.

https://doctorow.medium.com/a-collective-bargain-a48925f944fe

The neoliberal wing of the Democratic party hires high-priced consultants who advise them to seek 50.1% margins of victory – and then insist that nothing can be done because we live in the Manchin-Synematic Universe, where razor-thin majorities mean that there is no alternative. Labor organizers fight for 91% majorities – in the face of bosses' gerrymandering, disinformation and voter suppression – and get shit done.

Shifting the norms – having the conversations – is the tactic, but getting shit done is the goal. The Biden administration – a decidedly mixed bag – has some incredible, technically skilled, principled fighters who know how to get shit done. Take Lina Khan, who revived the long-dormant Section 5 of the Federal Trade Act, which gives her broad powers to ban "unfair and deceptive" practices:

https://pluralistic.net/2023/01/10/the-courage-to-govern/#whos-in-charge

Khan's wielding this broad power in all kinds of exciting ways. For example, she's seeking a ban on noncompetes, a form of bondage that shackles workers to shitty bosses by making it illegal to work for anyone else in the same industry:

https://pluralistic.net/2022/02/02/its-the-economy-stupid/#neofeudal

Noncompete apologists argue that these merely protect employers' investment in training and willingness to share sensitive trade secrets with employees. But the majority of noncompetes are applied to fast food workers – yes, the same workers who just won a 30%, across-the-board raise – in order to prevent Burger King cashiers from seeking $0.25/hour more at a local Wendy's.

Meanwhile, the most trade-secret intensive, high-training industry in the world – tech – has no noncompetes. That's not because tech bosses are good eggs who want to do right by their employees – it's because noncompetes are banned in California, where tech is headquartered.

But in other states, where noncompetes are still allowed, bosses have figured out how to use them as a slippery slope to a form of bondage that beggars the imagination. I'm speaking of the Training Repayment Agreement Provision (AKA, the TRAP), a contractual term that forces workers who quit or get fired to pay their ex-bosses tens of thousands of dollars, supposedly to recoup the cost of training them:

https://pluralistic.net/2022/08/04/its-a-trap/#a-little-on-the-nose

Now, TRAPs aren't just evil, they're also bullshit. Bosses show pet-groomers or cannabis budtenders a few videos, throw them a three-ring binder, and declare that they've received a five-figure education that they must repay if they part ways with their employers. This gives bosses broad latitude to abuse their workers and even order them to break the law, on penalty of massive fines for quitting.

If this sounds like an Unfair Labor Practice to you, you're not alone. NLRB General Counsel Jennifer Abruzzo agrees with you. She's another one of those Biden appointees with a principled commitment to making life better for American workers, and the technical chops to turn that principle into muscular action.

In a case against Juvly Aesthetics – an Ohio-based chain of "alternative medicine" and "aesthetic services" – Abruzzo argues that noncompetes and TRAPs are Unfair Labor Practices that violate the National Labor Relations Act and cannot be enforced:

https://www.nlrb.gov/case/09-CA-300239

Two ex-Juvly employees have been hit with $50-60k "repayment" bills for quitting – one after refusing to violate Ohio law by performing "microneedling," another for quitting after having their wages stolen and then refusing to sign an "exit agreement":

https://prospect.org/labor/2023-09-14-nlrb-complaint-calls-noncompete-agreement-unfair-labor-practice/

If the NLRB wins, the noncompete and TRAP clauses in the workers' contracts will be voided, and the workers will get fees, missed wages, and other penalties. More to the point, the case will set the precedent that noncompetes are generally unenforceable nationwide, delivering labor protection to every worker in every sector in America.

Abruzzo has been killing it lately: just a couple weeks ago, she set a precedent that any boss that breaks labor law during a union drive automatically loses, with instant recognition for the union as a penalty (rather than a small fine, as was customary):

https://pluralistic.net/2023/09/06/goons-ginks-and-company-finks/#if-blood-be-the-price-of-your-cursed-wealth

Abruzzo is amazing – as are her colleagues at the NLRB, FTC, DOJ, and other agencies. But the law they're making is downstream of the norms we set. From the California lawmakers who responded to fast food industry threats by introducing more regulations to the strip-bar patrons who refused to cross the picket-line to the legions of fans dragging Drew Barrymore for scabbing, the public mood is providing the political will for real action:

https://www.motherjones.com/media/2023/09/drew-barrymores-newest-role-scab/

The issues of corruption, worker rights and market concentration can't – and shouldn't – be teased apart. They're three facets of the same fight – the fight against oligarchy. Rarely do those issues come together more clearly than in the delicious petard-hoisting of Dave Clark, formerly the archvillain of Amazon, and now the victim of its bullying.

As Maureen Tkacik writes for The American Prospect, Clark had a long and storied career as Amazon's most vicious and unassuming ghoul, a sweatervested, Diet-Coke-swilling normie whose mild manner disguised a vicious streak a mile wide:

https://prospect.org/power/2023-09-14-catch-us-if-you-can-dave-clark-amazon/

Clark earned his nickname, "The Sniper," as a Kentucky warehouse supervisor; the name came from his habit of "lurking in the shadows [and] scoping out slackers he could fire." Clark created Amazon Flex, the "gig work" version of Amazon delivery drivers where randos in private vehicles were sent out to delivery parcels. Clark also oversaw tens of millions of dollars in wage-theft from those workers.

We have Clark to thank for the Amazon drivers who had to shit in bags and piss in bottles to make quota. Clark was behind the illegal union-busting tactics used against employees in the Bessamer, Alabama warehouse. We have Clark to thank for the Amazon chat app that banned users from posting the words "restroom," "slave labor," "plantation," and "union":

https://pluralistic.net/2022/04/05/doubleplusrelentless/#quackspeak

But Clark doesn't work for Amazon anymore. After losing a power-struggle to succeed Jeff Bezos – the job went to "longtime rival" Andy Jassy – he quit and went to work for Flexport, a logistics company that promised to provide sellers that used non-Amazon services with shipping. Flexport did a deal with Shopify, becoming its "sole official logistics partner."

But then Shopify did another logistics deal – with Amazon. Clark was ordered to tender his resignation or face immediate dismissal.

How did all this happen? Well, there are two theories. The first is that Shopify teamed up with Amazon to stab Flexport in the back, then purged all the ex-Amazonians from the Flexport upper ranks. The other is that Clark was a double-agent, who worked with Amazon to sabotage Flexport, and was caught and fired.

But either way, this is a huge win for Amazon, a monopolist who is in the FTC's crosshairs thanks to the anti-corporate vibe-shift that has consumed the nation and the world. As the sole major employer for this kind of logistics, Amazon is a de facto labor regulator, deciding who can work in the sector. The FTC's enforcement action isn't just about monopoly – it's about labor.

Now, Clark is a rich, powerful white dude, not the sort of person who needs a lot of federal help to protect his labor rights. When liberals called the shot in the progressive coalition, they scolded leftists not to speak of class, but rather to focus on identity – to be intersectionalists.

That was a trick. There's no incompatibility between caring about class and caring about gender, race and sexual orientation. Those fast food workers who are about to get a 30% wage-hike in California? Overwhelmingly Black or brown, overwhelmingly female.

The liberal version of intersectionalism observes a world run by 150 rich white men and resolves to replace half of them with women, queers and people of color. The leftist version seeks to abolish the system altogether. The leftist version of intersectionalism cares about bias and discrimination not just because of how it makes people feel, but because of how it makes them live. It cares about wages, housing, vacations, child care – the things you can't get because of your identity.

The fight for social justice is a fight for worker justice. Eminently guillotineable monsters like Tim "Avocado Toast" Gurner advocate for increasing unemployment by "40-50%" – but Gurner is just saying what other bosses are thinking:

https://jacobin.com/2023/09/tim-gurner-capitalists-neoliberalism-unemployment-precarity

Garner is 100% right when he says: "There’s been a systematic change where employees feel the employer is extremely lucky to have them, as opposed to the other way around."

And then he says this: "So it’s a dynamic that has to change. We’ve got to kill that attitude, and that has to come through hurt in the economy."

Garner knows that the vibes are upstream of the change. The capitalist dream starts with killing our imagination, to make us believe that "there is no alternative." If we can dream bigger than "better representation among oligarchs" when we might someday dream of no oligarchs. That's what he fears the most.

Watch the video of Garner. Look past the dollar-store Gordon Gecko styling. That piece of shit is terrified.

And he should be.

If you'd like an essay-formatted version of this post to read or share, here's a link to it on pluralistic.net, my surveillance-free, ad-free, tracker-free blog:

https://pluralistic.net/2023/09/14/prop-22-never-again/#norms-code-laws-markets