Eleven states plus Washington, D.C. now have wage thresholds or other criteria that must be satisfied before a noncompete can be used. Are your noncompetes compliant?
A new federal bill to amend the Fair Labor Standards Act to ban noncompetes — both retroactively and prospectively — for nonexempt workers.
Knowing the noncompete and trade secret laws across 50 states, plus D.C., is no easy task. And keeping track of the flood of changes in recent years makes it all the more difficult. Unfortunately, it’s not something you can ignore. Because of this, we have created several resources that make the task easier. We hope you find them helpful.
There has been a lot of legislative, regulatory, and judicial activity around noncompetes over the past two months or so. Here is a summary.
As noted in our post, Ask 70 Trade Secret Lawyers and Paralegals about Noncompetes and Get One Opinion, the FTC and DOJ encouraged the submission of public comments following the “Making Competiti...
Happy holidays! Episode 13 of Fairly Competing is out! In this episode, John, Ben, and Russell take a look back on some of the more significant developments in trade secret and restrictive coven...
The Federal Trade Commission (FTC) and Department of Justice (DOJ) just completed their second workshop on competition. Noncompetes are again squarely in the crosshairs. Here is what you need to know and what you need to do.
The FTC's and DOJ’s December 6 and 7 Virtual Public Workshop Exploring Competition in Labor Markets is almost here, and the agenda has been released. While it’s quite possible that noncompete...
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 fo...
The FTC and DOJ will be hosting a two-day workshop on December 6 and 7 covering, among other things, the use of noncompetes and NDAs.
As we look at recent developments in noncompete regulatory efforts at the state and federal levels, it’s good to have a quick reminder of how we got here. We’ll take a quick tour of noncompete regulation from the Middle Ages to now.
Contracts containing restrictive covenants (noncompetes, nonsolicitation agreements, and the like) have been the province of state regulation for over 200 years. However, starting in 2015, the federal government has been stepping into the breach through proposed legislation (most recently two bills to ban all employee noncompetes and one to amend the FLSA to ban noncompetes for nonexempt workers), FTC review (starting with a workshop in January 2020), and an Executive Order (on July 9, 2021) “encouraging” the FTC to “curtail the unfair use of non-compete clauses . . . .” While that’s not news, what is news is that earlier this week (September 14, 2021), the FTC issued a public statement that — if it is as broad as it appears — seems to presume that the FTC has authority to regulate these types of contracts.
A recent paper, “The Ethics of Noncompete Clauses,” by University of Georgia Professor Harrison Frye, expands the policy discussion around noncompetes, and argues for a more thoughtful analysis. As Professor Frye details, seeing noncompetes “as solely advancing the interests of employers is myopic.”
Misconceptions about noncompetes abound. And, as noncompete agreements are increasingly in the cross-hairs of the media and legislators, it has become increasingly clear that some of the most vocal de...
As of Friday (July 16, 2021), we again have competing approaches to federal legislation proposing limits on noncompetes. In addition to the previously reintroduced Workforce Mobility Act, proposing an outright ban, Senators Marco Rubio (R-Fla.) and Maggie Hassan (D-NH) have now reintroduced the Freedom to Compete Act to ban noncompetes for most workers who are not exempt under the Fair Labor Standards Act of 1938.
The updates keep coming, but the information does not — well, at least not quickly. President Biden’s Executive Order on Promoting Competition in the American Economy is now available, but references noncompetes in only two quick sentences throughout the 46 pages. Those two sentences provide only a bit more guidance.
This afternoon, President Biden signed an “Executive Order on Promoting Competition in the American Economy,” which included pushing for the regulation of noncompetes by the FTC. Based on his comments during today’s press conference (discussed in the post), we expect that any regulation will be balanced, focusing on regulating the abuses, rather than a throw-the-baby-out-with-the-bathwater wholesale ban.
President Biden had said that he “will work with Congress to eliminate all non-compete agreements, except the very few that are absolutely necessary to protect a narrowly defined category of trade secrets.” However, he has now announced that he will issue an executive order pushing for the limitation or elimination of noncompetes.
With all of the changes at the state level (45 bills in 21 states, plus D.C.’s near-total ban, which is, as of yesterday, now officially adopted and pending funding, likely in the fall, it seems), the federal efforts — spearheaded by Senator Chris Murphy — continue to inch forward. During the Senate the confirmation hearing of Julie Su (currently the Secretary of the California Labor and Workforce Development Agency) for the position the Deputy Labor Secretary, Senator Chris Murphy reminds us that his bill to ban noncompetes is still in the works — and that, ultimately, he expects the FTC to regulate noncompetes.
Another Congress, another federal noncompete bill: Four Senators and one Congressman have reintroduced a federal bill to ban all employee noncompetes.
It turns out that global climate change is caused by a decrease in the number of pirates. Don’t believe it? See the chart to the right. This is an example of mistaking correlation for causati...