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Enforcement of Non-Compete Clauses and Productivity

Enforcement of Non-Compete Clauses and Productivity published on No Comments on Enforcement of Non-Compete Clauses and Productivity

Non-compete clauses (or ‘covenants not to compete’, CNCs) in contracts restrict parties from working or doing business in particular industries or geographic markets for some period of time after the termination of the contract. These clauses seem to be getting more common (even for fast food restaurants). There are some economic justifications for CNCs, particularly if an employee has access to proprietary information that is central to the employee’s role or if things like client lists or industry contacts are key strategic assets. CNCs can help align the incentives of both the employee and the employer–since having those protections may increase information sharing within the firm. My colleague, Harvey James, Jr., has a nice piece (ungated version here) on employment contracts that discusses some of these incentive issues.

Ultimately, however, CNCs are subject to State law and State enforcement–and not all States enforce CNCs with equal rigor. So what are the effects of State enforcement (and thereby, of CNCs themselves)?

A recent study in Human Resource Management by Smriti Anand, Iftekhar Hasan, Priyanka Sharma and Haizhi Wang explores the effect of State enforceability of CNCs on firm productivity.  The results seem rather interesting. The abstract reads:

Noncompete agreements (also known as covenants not to compete [CNCs]) are frequently used by many businesses in an attempt to maintain their competitive advantage by safeguarding their human capital and the associated business secrets. Although the choice of whether to include CNCs in employment contracts is made by firms, the real extent of their restrictiveness is determined by the state laws. In this article, we explore the effect of state-level CNC enforceability on firm productivity. We assert that an increase in state level CNC enforceability is detrimental to firm productivity, and this relationship becomes stronger as comparable job opportunities become more concentrated in a firm’s home state. On the other hand, this negative relationship is weakened as employee compensation tends to become more long-term oriented. Results based on hierarchical linear modeling analysis of 21,134 firm-year observations for 3,027 unique firms supported all three hypotheses.

Corporate Tax Policy and Productivity Growth

Corporate Tax Policy and Productivity Growth published on

An article by Colin Davis and Ken-ichi Hashimoto in the latest Economic Inquiry seems relevant to the current GOP tax reform proposals. The paper, titled “Corporate Tax Policy and Industry Location with Fully Endogenous Productivity Growth,” purports to show the effects of differential corporate tax policy on business location choice, productivity and innovation. The abstract follows:

This paper considers how national corporate tax policy affects productivity growth through adjustments in geographic patterns of industry in a two-country model of trade. With trade costs and imperfect knowledge spillovers between countries, production concentrates partially and innovation concentrates fully in the country with the lowest tax rate. A rise in the international corporate tax differential accelerates productivity growth through an increase in the production share of the low-tax country that improves knowledge spillovers from industry to innovation. The paper also investigates the relationship between the corporate tax differential and the level of market entry, and analytically characterizes the effects of changes in tax policy on national welfare.

Given the U.S. has one of the highest corporate tax rates among developed nations, the results of this study would seem to support efforts to lower that tax rate to be more in line with international peers. And lest the result seem too politically convenient, an ungated copy of an earlier draft of the paper (from 2015) is available here.

“Net Neutrality” Isn’t So Neutral–Nor So Good

“Net Neutrality” Isn’t So Neutral–Nor So Good published on

The Federal Communications Commission lit up social media by formally announcing plans to roll back regulations imposed by the Obama administration that treat internet service providers (ISPs)–companies such as Comcast, AT&T, Verizon, or my beloved-be-damned Mediacom–like traditional utilities. Part of this roll back includes rules about net neutrality, which forbid ISPs from treating packets of data differently depending on who sent them or what they contain.

If you believe critics of this decision (such as here and here), the Internet is about to fall apart and all the things you love, from cute cat videos to online shopping to the latest streaming series sensation, will no longer be delivered to your desktop or mobile device. Instead, ISPs would control everything you’re allowed to say, do and view on the Internet, and they would thwart all innovation and potential disruptive technologies.

Never mind that the Obama-era regulation wiped out consumer protections that the Federal Trade Commission had developed, leaving Internet consumers in a privacy protection wasteland. And never mind that the regulation traded a vague threat of control by private companies for a very tangible control by government. The reality is that “net neutrality” itself threatens innovation and the development of disruptive technologies.

The concept of net neutrality is nothing new and isn’t unique to the Internet. Consider your local road system. The roads are the “pipes” of the Internet. Packets of data (cars and trucks) use the pipes to go here and there. Different packets carry different kinds of data–semis full of food, semis full of hazardous materials, city buses, and lots of personal vehicles whether with single passengers or multiple. Some of these packets are very big, take up a lot of space, and tend to bog things down in traffic. And especially at peak times of day, when there are thousands of different ‘packets’trying to get here and there, the system gets very congested and everything slooowwsss dddoooowwwwnnnn. Don’t you just hate that?

In order to alleviate congestion, many transportation authorities (the ISPs of the highways) restrict use of certain lanes to certain kinds of vehicles: “No Trucks in the Left Lane”, high-occupancy vehicle (HOV) lanes, and even toll roads that charge different fees for different size vehicles reflecting the different costs they impose on the system.

Why do we allow transportation authorities to discriminate on who gets to drive where and how much they have to pay to use the road? Simple. We understand the congestion problem. We understand that having lots of individual cars with only one passenger contributes more to the congestion than a car (or bus) with many passengers, so we reward  HOVs by giving them a lane with less congestion so they can get to their destination more quickly. We understand that bigger vehicles impose higher costs on the system. We also know they value using the roads more than smaller, especially personal, vehicles, because they typically are carrying products to market that consumers value. Not surprisingly, trucking companies tend to dislike higher toll fees because it increases their cost of business. They’d much rather have other vehicles–and even people who don’t drive on the roads–pay for the infrastructure instead.

Proponents of net neutrality on the Internet–particularly streaming companies like Netflix, Hulu, or Sling–are basically like truck companies. These companies stream huge packets of data, taking up tons of bandwidth. If you have a cap on your data plan, you know how quickly you can reach your limit if you stream a lot of television through one of these services. Likewise, you know how frustrating it is when the pipes are so full of packets of all sorts that you get a lot of buffering or reduced image quality or the interminable little whirling circle that your download is still in progress.

With net neutrality, ISPs cannot charge more for “big trucks” and they can’t set up dedicated lanes for high-value traffic. They’re forced to make everyone stay on the same road, at the same speed, and deal with the congestion. Not only do they have less incentive to invest in the infrastructure since they can’t charge more for it, they also have fewer resources to do it since they can’t collect more money from the higher-value users.

As consumers of the Internet, the problems of net neutrality are less immediately obvious than our experiences with traffic on the highway. However, the nature of the problem is the same. We understand why ‘net neutrality’ on the highway is not the best policy. And the same applies to the Internet.

 

Board Independence Gone Too Far?

Board Independence Gone Too Far? published on

The corporate governance literature has long argued that corporate boards should be comprised of a majority of independent directors. This is the result of a simple agency theory argument: Boards comprised of insiders (i.e., firm employees) will put their own interests ahead of the shareholders’. Moreover, any insider other than the CEO may have incentive to accommodate, rather than challenge, the CEO in the boardroom. Independent directors are assumed not to have such conflicts of interest and therefore to be better monitors of management on behalf of shareholders.

This argument, combined with corporate scandals in the early 2000s, has led to both regulatory requirements and shareholder activist pressure for increased board independence–to the point that many firms now have only one insider on the board, the CEO. That’s well beyond the theoretical justification for increased independence. But is it actually a good thing for the CEO to be “home alone” as the sole insider on the board? Has the push for board independence gone too far?

A forthcoming paper in the Strategic Management Journal by Michelle Zorn, Christine Shropshire, John Martin, James Combs and David Ketchen, titled “Home Alone: The Effect of Lone-Insider Boards on CEO Pay, Financial Misconduct, and Firm Performance,” suggests that such extreme independence is actually a bad thing. The abstract follows:

ABSTRACT

Research summary

Corporate scandals of the previous decade have heightened attention on board independence. Indeed, boards at many large firms are now so independent that the CEO is ‘home alone’ as the lone inside member. We build upon ‘pro-insider’ research within agency theory to explain how the growing trend toward lone-insider boards affects key outcomes and how external governance forces constrain their impact. We find evidence among S&P 1500 firms that having a lone-insider board is associated with (1) excess CEO pay and a larger CEO-top management team pay gap, (2) increased likelihood of financial misconduct, and (3) decreased firm performance, but that stock analysts and institutional investors reduce these negative effects. The findings raise important questions about the efficacy of leaving the CEO ‘home alone.

Managerial summary

Following concerns that insider-dominated boards failed to protect shareholders, there has been a push for greater board independence. This push has been so successful that the CEO is now the only insider on the boards of more than half of S&P 1500 firms. We examine whether lone-insider boards do in fact offer strong governance or whether they enable CEOs to benefit personally. We find that lone-insider boards pay CEOs excessively, pay CEOs a disproportionately large amount relative to other top managers, have more instances of financial misconduct, and have lower performance than boards with more than one insider. Thus, it appears that lone-insider boards do not function as intended and firms should reconsider whether the push towards lone-insider boards is actually in shareholders’ best interests.

Calling a Cost a Cost: NY Anti-Free Speech Edition

Calling a Cost a Cost: NY Anti-Free Speech Edition published on

Seems the State of New York is going to the Supreme Court for another of its protectionist regulatory policies. Yesterday the US Supreme Court granted a petition to hear the case of Expressions Hair Design v. Schneiderman. As the WSJ explains, at issue is whether New York’s regulations concerning credit-versus-cash retail prices constitute a First Amendment speech violation.

The problem stems from the fact that the State of New York has attempted to have its cake and eat it to by ignoring economic rcredit-card-1520400_1280ealism and prohibiting retailers from calling a cost a cost. The State prohibits retailers from charging customers a fee for using a credit card, but allows retailers to give customers a discount if they use cash. A group of hair salons, led by Expressions Hair Design, sued the state for infringing on its right of free commercial speech. The salons won their initial case, which was reversed on appeal. Now SCOTUS will have an opportunity to weigh in.

The Cost of Using Credit
From an economic perspective, the issue is fairly simple. Credit card companies charge vendors a fee every time a consumer pays with plastic. How much depends on the credit card company, whether the transaction is run as debit or credit, and the amount of the transaction. But typically, the fee is around 2-4% of the amount of the purchase. This reduces the amount of revenue retailers receive when the customer uses plastic. Put another way, when customers choose to use plastic, it raises the retailer’s cost of doing business for that sale.

In a free economy, retailers could choose one of three options: 1) force the credit card user to pay the additional transaction fee, which raises the price at the point of sale, 2) charge the same price for all buyers, implicitly charging cash users more for the product to subsidize the costs of the plastic users, or 3) pass the transaction fee savings on to cash users by giving them a discount. The only economic difference between 1 and 3 is what the sticker price is relative to the price actually paid. In #1, credit card users pay more than the sticker price; in #3, cash users pay less than the sticker price. In #1, the credit card fee is made explicit by adding it on just for those consumers who use plastic. In #3, the sticker price includes (i.e., hides) the cost of using a credit card and by default is the price everyone pays unless they are aware of the cash discount. In either case (1 or 3), the retailer is price discriminating between cash and plastic users. Or the retailer could simply post two sets of prices, one for credit and one for cash, which would then beg the question of “why the difference?” And that is where the NY regulations become a problem.

The NY regulation prohibits retailers from choosing #1 but allows them to choose #3. In other words, the regulation allows retailers to price discriminate, but only if they present it as a discount for cash users rather than a surcharge for credit card users. In short, NY allows the exact same price discrimination between two sets of consumers, but restricts the speech of retailers in how they are allowed to describe that price difference. As Expressions Hair Design argues in their complaint, this places a burden on the business in how it is allowed to explain or justify what is otherwise a perfectly legal two-price pricing system since the regulations make it illegal for employees to explain that the difference between the cash price and the credit price is due to the cost of the credit transaction. It would be like passing a law prohibiting a restaurant from explaining the cost of its steaks went up relative to its pork chops because the price of beef rose.

Framing matters
Why would the State of New York prohibit credit card surcharges but not prohibit cash discounts? Consumers respond to price signals, so how those signals are presented matters. If consumers are charged an extra fee for using their credit card, it makes the cost (price) of using the credit card very obvious to the consumer and she is more likely to change her behavior by using cash instead. This would be bad for the banks that make a significant amount of money on credit card swipe fees. Not surprisingly, banks support laws prohibiting explicit credit card surcharges. However, as noted in #2 above, charging cash and plastic users the same forces cash users to subsidize the purchases of plastic users, which also tends to penalize lower income persons relative to wealthier shoppers. So allowing retailers the opportunity to provide cash discounts is socially superior to not allowing differential pricing. However, the NY’s prohibition on calling a cost a cost and explaining the price difference for what it is, is not only an infringement on speech, but unjustifiable as anything other than an attempt to mislead consumers and protect credit card issuers.

A win for the auto cartel, a loss for Missourians

A win for the auto cartel, a loss for Missourians published on

The Missouri Auto Dealer Association (MADA) has been exercising its political muscle for at least a couple years to protect its antiquated state-supported cartel over new car sales. It seems they have finally succeeded in court where their lobbying efforts have failed. In an opinion  last week by Cole County Circuit Judge Daniel Green, the court ruled that Missouri state statutes governing automobile distribution prohibit Tesla from operating its own retail stores in the state.

The case, which the MADA filed against the Missouri Department of Revenue, contested the State’s issuance of two franchise dealer licenses to Tesla for Tesla to open its own “franchise” retail stores. Basically, Missouri statutes have implemented a circular argument that prohibits auto manufacturers from owning new vehicle dealerships. § 301.550.3 RSMo specifically limits new car dealers to being franchises, statutorily side-stepping the possibility of a non-franchise new car dealer. The court essentially argued (perhaps rightly) that Tesla’s self-dealing of the franchise to itself was merely a rhetorical ploy to circumvent this failure of the statutes to allow for non-franchise dealers. However, even if that side-step were permissible, § 407.826.1 RSMo specifically prohibits auto industry franchisors from “owning or operating a new motor vehicle dealership in this state.”

Judge Green’s opinion basically means the laws of the state of Missouri preclude the possibility of any auto manufacturer selling its cars in Missouri directly to consumers. While Tesla can continue to operate its two service centers in the state, it cannot make car sales there. Instead, the company must continue to sell to Missourians over the internet with a point-of-sale in another state. (So much for more sales jobs.)

I and others have written previously (here, here, and here) why bans on Tesla’s direct-to-consumer sales model are bad for consumers and for society in general. This most recent ruling in Missouri just highlights how fundamentally flawed the regulation of commerce can be. Missouri’s laws, to the extent they ever made sense, are rooted in an antiquated industry and technological setting. Advancements in information technology alone have undercut many, if not all, of the economic justifications for an auto manufacturer to use a franchised distribution system. Laws that were written to protect franchisees in a 1950s-era distribution system do nothing now but raise consumers’ costs and thwart technological and organizational innovation that make everyone better off. Everyone, that is, except the franchised auto dealer cartel that sees all too clearly how little value it now adds in the sale and distribution of new cars.

Hopefully Missouri’s legislature will have the gumption to fix the flaws in its statutes that limit all new car retailers to “franchises” and instead let auto manufacturers (or any other manufacturer) choose the model they find best for themselves and their customers.

 

Database of Federal Regulations

Database of Federal Regulations published on

Omar Al-Ubaydli and Patrick McLaughlin (both at George Mason University) have an article in the most recent issue of Regulation & Governance documenting their RegData database, which “measures [federal] regulation for industries at the two, three, and four-digit levels of the North American Industry Classification System.” While any attempt to quantify regulations is fraught with problems, as the authors note in their paper, their text-based approach would seem as good a method as any (and superior to some) for providing a numerical measure of regulation that could be used for empirical research. And what’s even better, the data are freely available here. The abstract of the paper reads:

We introduce RegData, formerly known as the Industry-specific Regulatory Constraint Database. RegData annually quantifies federal regulations by industry and regulatory agency for all federal regulations from 1997–2012. The quantification of regulations at the industry level for all industries is without precedent. RegData measures regulation for industries at the two, three, and four-digit levels of the North American Industry Classification System. We created this database using text analysis to count binding constraints in the wording of regulations, as codified in the Code of Federal Regulations, and to measure the applicability of regulatory text to different industries. We validate our measures of regulation by examining known episodes of regulatory growth and deregulation, as well as by comparing our measures to an existing, cross-sectional measure of regulation. Researchers can use this database to study the determinants of industry regulations and to study regulations’ effects on a massive array of dependent variables, both across industries and time.

Now, if only there was such a database of State-level regulations.

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