Some Thoughts on Orly Lobel’s “Talent Wants to Be Free”

I had the pleasure of meeting Orly Lobel this past September at the Employment and Labor Law Colloquium at the University of Nevada, Las Vegas. As it happened, the colloquium was held just a few days before Orly’s book, Talent Wants to Be Free: Why We Should Learn to Love Leaks, Raids, and Free Riding, was officially published. At the colloquium, Orly gave a brief talk about the themes of the book , and I was so intrigued by what she discussed that I bought the book as soon as it was available here.

I was hoping to have posted something sooner about Talent Wants to be Free. But the book was so thought-provoking for me that I ended up reading a part of it, putting it aside to think about what I had read, and then reading some more. So it took me a while to get through the entire book – but that’s an indication of how much valuable information there is in it, and how smartly it’s written.

The basic premise of the book is somewhat counter-intuitive – that organizations employing highly-skilled or specialized workers should not try to artificially tie those workers  into an indefinitely long relationship controlled by the organization. The book argues that, rather than hurting organizations through the loss of valuable employees or products, letting workers move freely between the employers that they choose benefits everyone in the long run. This is because:

  • Organizations don’t have to invest resources in developing or continually refining ways to contractually bind employees, or in fighting lengthy legal battles with those employees who do leave (and thus, organizations can put those resources toward more productive uses);
  • Employees are better able to develop their skills and pursue the career path that is the most attractive or rewarding to them, which makes them better employees and happier people;
  • If employees don’t feel legally trapped within the company, they have a more equitable relationship with the employer, feel more valued and supported, and then can be more productive and innovative; and,
  • The flow of employees and ideas between organizations benefits not only the individuals and companies involved, but also benefits society as a whole, because of increased innovation and more creative activity.
The cover of "Talent Wants to be Free". (credit: yalepress.yale.edu)

The cover of “Talent Wants to be Free”. (credit: yalepress.yale.edu)

As someone who teaches human resource management courses but who isn’t a lawyer, one of the parts of Talent Wants to be Free that was most interesting to me was the discussion of the different contract terms that employers use to control employee mobility. These include non-compete agreements, restrictions on outside employment, early-exit penalties, and partial or complete control over anything the employee produces for the organization or the use of any skills or information the employee acquires while with the employer. The book also has an extensive discussion of the different US laws governing employer control over employee mobility, and of the notable legal decisions that have applied and interpreted those laws. I won’t even attempt to summarize this discussion, because it’s very complex – but I will say that it’s a fascinating read. It demonstrates how many organizations automatically assume that employee talent needs to be closely regulated and controlled – and how many organizations have uncritically adopted that perspective without really thinking about its consequences.

The examples showing the benefits of talent being “free” really made me think about how the employer-employee relationship is usually conceptualized. We tend to think of employers and employees relating to each other only within the organization itself, with the main interactions outside the organization happening during employee hirings and departures (as in the employee retiring, resigning, or being fired). But the book points out that organizations and employees can’t be successful without interacting with other organizations and those organizations’ employees. So if an organization treats an employee well and the employee leaves on good terms – not by escaping the shackles of a restrictive employment contract and feeling bitter and mistreated – the organization can benefit from connections and networks with whatever other organizations the employee moves on to participate in.

Also, employees have work-related connections outside the organization, through school, professional associations, and business relationships – and organizations don’t benefit from those connections if they unduly restrict how or what employees can share through those connections. That’s a really different way of conceptualizing the employment relationship, and a very insightful one.

The book also made me think about how employer-employee relationships affect the societies they are situated in. The book looks at why Silicon Valley in California became a much bigger high-tech center than Route 128 in Massachusetts, despite both having world-renowned universities, researchers, and innovative companies in the immediate geographic area. California has different laws than Massachusetts around what an employment contract can contain, so employees can move more easily between employers in California – but I was also very intrigued to learn that some California employers think about employment in a more holistic sense, and how it relates to the industry and the region.

For example, IBM has a post-doctoral fellowship program that is structured with the company knowing full well that many of the program’s participants will move on to other employers after their fellowship is over. I suspect that most companies would look at the expense of a program like this and wonder why they should spend money to train their competitors’ future employees. But IBM’s philosophy is that skilled employees are a benefit to the industry as a whole, and that a healthy industry makes the region more attractive to other potential employees, and a better place to live and work. Now obviously IBM is big enough and wealthy enough to risk operationalizing that philosophy, but this is a really unselfish way of thinking about what goes on in the community and the region outside the employer, and proactively contributing positively to that.

There were just two points in the book where I felt the discussion could have been expanded; both had to do with compensation. There isn’t a lot of discussion of pay and benefits, or pay-related issues, in the book. But  compensation often plays a significant role in determining how employees feel about their employers and about their conditions of employment. Employees may stay with an organization if they feel their amount of pay makes up for other things in the workplace that are less satisfactory to them. But if employees feel they are not being fairly compensated, that could increase their desire to move to another employer, and they will become frustrated if they are unduly restricted by contracts or other conditions that make it difficult for them to leave.

The book describes the general shift in the past century from employers viewing employees as parts of the production process, needing direction and supervision, to employers encouraging employees to be autonomous and innovative at work. I’d certainly agree that this shift occurred, but I’d add that it has generally not been accompanied by significant changes in compensation to recognize the additional expectations placed on employees. In my view, the lack of adjustment to compensation indicates that employers are maybe not as progressive in their thinking as the change in perspective might suggest.

There is also a discussion of knowledge as property, and how the flow of knowledge has traditionally been controlled – maybe too controlled – through mechanisms such as patents and copyrights. This is obviously a hugely complicated issue,  and I’ll admit that as an author myself I have my biases – but I thought the issue of compensation for a product’s creators was a little underplayed in this discussion. Patents and copyrights were originally designed not only to control the (legitimate) distribution of the product, but also to attempt to ensure that the product’s creator was fairly compensated for their investment and labour. I’d agree that unduly restricting the flow of ideas or knowledge is definitely not healthy, but I’d argue that any structure facilitating that flow still has to ensure that the creator gets adequately paid for their production.

Despite those debatable points, though, I learned a tremendous amount from  Talent Wants to be Free. I appreciate that it challenged my thinking, and I enjoyed reading it as well. I highly recommend the book to anyone who is interested in human resource management or employment law, or who wants a different perspective on the employer-employee relationship or on the issue of labour market mobility.  I hope that the counter-intuitive ideas that Orly proposes get the attention they deserve.

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