Professor Jonathan Harris’ Scholarship Fuels Efforts to Abolish TRAPs

Professor Jonathan Harris’ scholarship on training repayment agreement provisions (“TRAPs”) is fueling an on-the-ground movement to ban these pernicious restraints on worker mobility.  

TRAPs are a form of “stay-or-pay” contract – adhesive contracts that force employees to work for a specified period of time or pay a monetary penalty for leaving prematurely.  Sometimes these penalties are framed as “payback” for an employer’s investment in employee training. But in reality, the training is often substandard and merely an excuse for imposing steep fines on departing employees that can reach tens of thousands of dollars. Unscrupulous employers can leverage these agreements to keep workers in their jobs for fear of incurring crippling debt.

Prior to entering law teaching, Harris witnessed the harsh effects of TRAPs first-hand. While working as in-house counsel with a California nurses’ union, he saw recent nursing school graduates stuck at low-quality, non-unionized hospitals, unable to leave unsafe and unsustainable jobs due to costly TRAPs. The experience inspired one of Harris’ first law review articles, Unconscionability in Contracting for Worker Training, 72 Ala. L. Rev. 723 (2021).

The nonprofit Student Borrower Protection Center (“SBPC”) found Harris’ arguments convincing. It responded with a national campaign to ban TRAPs as a form of employer-driven student debt. Federal and state policymakers have since taken up the cause, seeking regulatory pathways to curtail stay-or-pay contracts, especially when used to circumvent otherwise unlawful noncompetes.

Harris is continuing to direct his expertise toward legal reform. He recently contributed to “Stay or Pay: Federal Actions to End Modern-Day Indentured Servitude,” a compendium of memos exploring strategies for banning stay-or-pay contracts.  Harris’ chapter, “Invoking the NLRB’s Authority to Ban the Use of Stay-or-Pay Contracts that Violate the National Labor Relations Act,” is a call to action for the National Labor Relations Board (NLRB) to leverage its adjudicatory powers toward that goal. 

Harris provides the NLRB with a legal framework, drawing on the agency’s 2023 decision in Stericycle, Inc. That decision held that employer policies violate Section 7 of the National Labor Relations Act (NLRA) whenever they have a “reasonable tendency to chill employees’ ability to act concertedly.” According to Harris, stay-or-pay contracts should be deemed an unfair labor practice under that standard. They directly dissuade concerted action by preventing workers from quitting their jobs in concert or threatening to do so in response to poor working conditions. They also chill other forms of concerted behavior by heightening the consequences of employer retaliation. Stay-or-pay contracts apply regardless of whether employees depart voluntarily or involuntarily. Workers who seek to organize or act collectively in other ways to improve working conditions face the double threat of losing their job and having to pay off burdensome debt with no source of income. 

Harris proposes that the NLRB General Counsel issue a memorandum clarifying that stay-or-pay contracts violate Section 7 of the NLRA by chilling worker concerted activity. The General Counsel has already issued such a memo regarding noncompetes, which similarly diminish workers’ ability to quit. At least one administrative law judge has already applied this theory, finding an employer had committed an unfair labor practice by requiring employees to sign such an agreement.

Harris’ work is a bright example of the real-world value of legal scholarship. Academics can help craft and provide legitimacy for new legal strategies in pursuit of legal reform. And doing so can be rewarding, as Harris explains: “I find immense fulfillment in watching policy reform based on the blueprints my scholarship provides, even if the workers and their advocates are the ones doing the work on the ground. The TRAPs work is an example of how those approaches can converge to effect real change for workers.”