法律手段真能留住人才？
摘錄自：天下雜誌 經濟學人電子報 2013/12/20
2013-12-16 Web only 作者：經濟學人
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| 圖片來源：flickr.com/photos/76029035@N02/ |
商業雜誌中不時刊登關於「人才戰爭」的溫暖故事；eBay付給科技主管的薪資是執行長的2倍，蘋果最近付了800萬美元給科技主管以免他跳槽。科技企業常常在新創企業身上花大錢，好「收購」它們的員工，更搶著為員工提供最棒的食物和最新潮的瑜珈老師。
但人才戰爭亦有黑暗面，那些黑暗戰爭所使用的彈藥是法律和手銬，而非紅利和美食。越來越多企業利用訟訴阻止員工投往對手懷抱，導致勞動市場無法自由流動。
最熱門的武器就是競業條款，規定員工在離職後的固定期間內不得為競爭對手工作，也不能創立在業務上與前公司形成競爭關係的企業。過去只有知識密集企業的高層才會受到這類協議限制，但現在它們已變得十分普遍：在美國，約9成管理及技術員工都必須簽署競業禁止條款。
其他武器還包括「機密資訊」和「發明前轉讓」協議。企業可以前員工擁有商業機密為由，阻止前員工（包括那些並未簽署競業禁止協議的前員工）加入競爭對手的公司，而且員工在加入公司前已研究多年的想法，或是員工在空閒時間、甚至是離職後想出的想法，企業都可以宣稱其擁有權。
不難理解企業為何如此喜愛這些武器。資深高層投奔敵營，可能會讓企業損失價值數百萬美元的知識和合約，如果高層人員知道企業的秘密配方或演算法，損失會更加慘重。員工討厭它們的原因同樣不難理解；競業禁止讓人在很長一段時間內無法銷售其勞動力，而在這段期間裡，技能會退化、人際網絡也會消逝。
如何調解雇主和員工那相互衝突的主張？如果訓練和創新的受益者可以隨意投身敵手，雇主自然也不太願意投資於訓練和創新；競業禁止條款等限制最終對所有人都有益，因為它們會增加企業投資人才的誘因。
然而，聖地牙哥大學的法律教授洛貝爾（Orly Lobel）在新書《人才想要自由》中，卻提出了強力的反論。他認為，讓人才自由流動，才能獲得最大效益；人才自由流動讓人得以選擇符合其技能的工作和薪資，進而增強經濟效率，而且沒有人喜歡被綁住。人才流動亦有助創新，因為它能讓資訊擴散、拓展專業網絡並鼓勵各領域相互交流。
加州正是人才流動的明顯例證：加州是矽谷和好萊塢的家鄉，也是最不願意利用競業禁止條款限制人才流動限制的一州。這或許純粹出於巧合，但加州只是普遍模式的一部分。在美國，限制較低的州，資本投資及創新的表現都比較好。人才自由流動對新創企業來說尤其重要，因為大企業可以輕易地利用法律擊垮它們。在西方，北歐、以色列等限制較輕的國家，通常比德國、法國等限制較嚴格的國家更具創新能力。
技能勞動力刺市場保持自由，有助於整體經濟發展。但洛貝爾指出，無論企業在人才大戰中的某場戰役是勝是敗，人才自由流動都對企業有利。身處於高技能勞工開放市場的企業，其人力資源品質通常也比較高；它們在召募和留住人才時，也比較常使用績效獎勵的方法。失去重要人才的企業，還可以藉此找出自己的弱點：石油服務公司斯倫貝謝（Schlumberger）只要失去了某一位原本想要留住的人才，就會進行內部調查。
洛貝爾的看法或許太過；如果對手試圖雇用重要員工以盜取商業機密，企業當然應該要有自保能力。但她的直覺絕對是正確的；在現代經濟，人力資本是財富最重要的來源，企業佈下法律之網，阻止人才自由流動，其負面影響已隱隱浮現。
決策者得移除這些限制：除非發現明顯的盜取機密意圖，都該假定人才自由流動是件好事。企業應該停止將員工視為財產；麥肯錫視前員工為需要安撫的校友，而非必定得控告的敵人。其他企業也該這麼做；遇上侵略性極強的對手時，手銬腳鐐或許是個不錯的主意，但產業的龍頭企業很少這麼做，這背後必定有其原因。（黃維德譯）
©The Economist Newspaper Limited 2013
The Economist
Schumpeter
Ties that bind
By The Economist
From The Economist
Published: December 16, 2013
Dec 14th 2013 | From the print edition
The market for smart people is clogged up by all manner of dubious
legal restrictions.
THE business press is full of heartwarming stories about the
"talent wars". It reports that eBay pays its lead technologist twice
as much as its chief executive. Apple recently slipped a high-flyer $8m to
prevent him from jumping ship. Tech firms regularly spend lavishly on startups
in order to "acqui-hire" their employees. They also compete furiously
to provide workers with the best food and the most fashionable yoga
instructors.
But the talent wars have a darker side, one that is fought with
lawsuits and handcuffs rather than bonuses and California rolls. Firms are
increasingly resorting to litigation—some of it extraordinarily unpleasant—to
prevent employees from moving to rivals. The result is that the labour market
is becoming clogged.
The most popular weapon on this front is the "non-compete"
agreement, which prevents employees leaving a firm from working for a rival for
a fixed period (usually up to two years but as many as five in Italy) or
setting up a competing business. These were once mainly confined to the upper
ranks of knowledgeintensive firms. Now they are ubiquitous: about 90% of
managerial and technical employees in America have signed them.
Other weapons in the arsenal include "confidential
information" and "pre-invention assignment" requirements.
Companies can prevent former workers (including those who have not signed
non-compete agreements) from moving to a rival on the ground that they are
taking trade secrets with them. They can also assert astonishingly wide-ranging
rights over their employees' inventions—claiming ownership of ideas that people
had been working on for years before they joined the firm or which they came up
with in their spare time or even after leaving.
It is easy to see why companies like these weapons. Firms can lose
millions of dollars' worth of knowledge and contacts when a senior executive
joins a rival. They can lose even more if the executive knows their secret
recipe or algorithm. It is equally easy to see why employees hate them.
Non-competes prevent people from selling their labour for long periods during
which skills atrophy and contacts fade away.
How can the competing claims of employers and employees be reconciled?
Judges have tended to put a heavy emphasis on the free-rider problem in dealing
with this conundrum. Employers have little incentive to invest in training and
innovation if the beneficiaries can move to a rival whenever they feel like it.
Restrictions like non-compete clauses ultimately benefit everybody because they
increase companies' incentives to invest in human capital without that fear.
A new book, "Talent Wants to Be Free", by Orly Lobel, a law
professor at the University of San Diego, presents a powerful counterblast to
this argument. The drawbacks of the free-rider problem are as nothing compared
with the advantages conferred by mobility. The free flow of talent encourages
economic efficiency because it allows people to work in jobs and for wages that
fit their skills. And no one likes being tied down. It also encourages innovation
because it spreads information, extends professional networks and encourages
cross-fertilisation.
An obvious example of the virtues of mobility is California: the home
of Silicon Valley and Hollywood has been more reluctant than any other state to
recognise non-competes and other restrictions on the tide of talent. This might
be pure coincidence. But California is part of a more general pattern. American
states with weak restrictions have better records of capital investment and
innovation than those with strong ones. Freedom of movement is especially
valuable for startups, which can easily be beaten to death by incumbents
wielding a legal stick. Places in the West with lenient restrictions, such as
the Scandinavian countries and Israel, tend to be more innovative than
countries with tough ones like Germany and France.
That a free market for skilled people benefits the economy as a whole
seems to offer cold comfort to firms that open themselves to raiders. But Ms
Lobel retorts that the free flow of talent is good for individual companies
whether they win or lose a particular battle in the wars. Firms that operate in
such open markets for the highly skilled tend to have better-quality human
capital. They make more use of performance-related rewards in a bid to recruit
and retain stars. Those that lose their best people to rivals can also benefit
by learning about their own weaknesses: Schlumberger, an oil-services firm,
conducts internal inquiries whenever it loses somebody it wants to keep. Firms
can also benefit from a raider's success: Cooley, a big law firm, suffered
angst over losing a leading lawyer to a then unknown website. It was forgotten
when their ex-employee hired the company to act as eBay's counsel for its $63m
IPO.
America's got talent
Ms Lobel can sometimes takes her case too far. Companies surely deserve
protection from rivals who try to steal trade secrets by hiring privileged
insiders. But her instincts are absolutely correct. Human capital is the most
important source of wealth in the modern economy. It is a looming problem that
established companies are weaving a web of legal restrictions on the free
movement of talent.
Policymakers need to remove these restrictions: they should presume
that free trade in human talent is a good thing unless there are obvious
attempts to steal corporate secrets. And firms need to stop regarding workers
as chattels. McKinsey has done well by treating its ex-employees as alumni to
be stroked rather than enemies to be persecuted. Other companies should do
likewise. A ball and chain might look like a good idea when confronted by an
aggressive competitor. But there is a reason why it is an impediment seldom
associated with front-runners.
©The Economist Newspaper Limited 2013
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