As we await the FTC and DOJ’s December 6 and 7 Virtual Public Workshop Exploring Competition in Labor Markets, it’s important to know that on November 12, the FTC posted a draft Strategic Plan for Fiscal years 2022-2026.
The 30-page document contains two express references to noncompetes.
Under the framework of “[I]improv[ing] compliance” with FTC orders and Hart Scott-Rodino reporting requirements, the FTC says this at page 16:
Increase use of provisions to improve worker mobility including restricting the use of non-compete provisions. Seek higher penalties for order violations and [Hart-Scott-Rodino] violations. Increase use of prior approval provisions to prevent illegal transactions in the same markets as those already under order.
Framed in this way, the focus appears to be on noncompetes in mergers.
However, the draft plan goes on (on page 19) to state the following:
Focus on workers: Study and investigate the impact on worker wages and benefits from merger and nonmerger conduct, as well as non-compete and other potentially unfair contractual terms resulting from power asymmetries between workers and employers.
So, lots to consider. The workshop should provide tremendous insight.
In the meantime, as previously noted, if you want to submit comments, you may do so through December 20, 2021, by submitting them at Regulations.gov.
And, by way of update, I will be supplementing and re-submitting the letter that I and a group of nearly 60 lawyers and paralegals submitted back in July. If you are interested in being added as a signatory, please email me ASAP (if you have not done so already).
Stay tuned for more.