While the Massachusetts Legislature is still working through a bill that would limit noncompete agreements, some current and former EMC employees have their own plan for taking noncompetes down: through organized labor.
A new “pop-up” union of sorts has formed called the Employee Association to Renegotiate Noncompetes – Team for EMC Employees, or EARN-TEE for short, and its plan is to essentially gain collective bargaining power over contract negotiations with EMC to put an end to noncompetes or at least severely weaken them.
It wouldn’t be a big step for them to get rid of their noncompetes,
Kevin Johnson is the founder of Boston-area startup Common Commute, and he told BostInno that he helped form EARN-TEE because of his own experience of dealing with noncompetes, even though he has never been employed by EMC. He has also volunteered with the Institute of Electrical and Electronics Engineers in their own battle against noncompetes.
“Over time I thought they have become more onerous,” Johnson said.
Johnson recently wrote a blog post on the website OnLabor about EARN-TEE, and it was co-authored with James Bessen, an economist and a lecturer at the Boston University School of Law; Michael J. Meurer, a professor at the Boston University School of Law; and Catherine Fisk, chancellor’s professor of law at the University of California.
Johnson said the group formed this spring because employees may have extra leverage with Dell’s pending acquisition of EMC and some of the snags that it has hit. The group is gathering signatures from current and ex-employees on its website, and it’s expected to vote to certify itself with the National Labor Relations Board later this summer.
Once the group certifies, Johnson said it will have bargaining power over employee contracts with EMC and give employees in the upper hand in trying to weaken or entirely nix noncompetes. If noncompetes are eliminated or limited to three months or less, at EMC or statewide, the group will dissolve, which is why he calls it a “pop-up.”
Johnson said EARN-TEE doesn’t call itself a union and instead considers itself an employee association, and that its structure is less formal than existing unions, harkening back to some of the country’s oldest unions.
If state lawmakers pass reform that limits the noncompetes to 12 months, Johnson said EARN-TEE will continue to fight to eliminate or weaken noncompetes even more since contracts for many EMC employees already make them wait 12 months until they can work for a competing company in a similar capacity.
But if the noncompete reform bill’s “Garden Leave” clause — for companies to compensate employees after they leave — somehow manages to stay in, Johnson said EARN-TEE will wait and see if EMC decides to keep enforcing noncompetes or give them up because of the clause’s costly implications.
“It wouldn’t be a big step for them to get rid of their noncompetes,” Johnson said, pointing out that two-thirds of the jobs EMC has posted are in California and India, where noncompetes are unenforceable.
Johnson noted that in a proxy statement filed on June 6 by Denali, Dell’s acquisition vehicle, it says that EMC has represented to Dell “that there is no labor union organizing activity ongoing among” employees of EMC or its subsidiaries — which Johnson said ignore’s EARN-TEE’s organizing effort.
EMC didn’t immediately respond to a request for comment.