Tag Archives: 50 state survey

Once again, we have resounding unanimity on the issues and recommendations to the FTC and DOJ, as they consider whether to regulate (and if so, how) noncompetes, nondisclosure agreements, and other restrictive covenants. 70 lawyers who practice extensively in the area of trade secret and restrictive covenant law agree: federal regulation is likely inappropriate, definitely premature, and, in any event, should be limited.
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.”
If you’ve been following along with this series of posts, you know that there have been 66 noncompete bills pending in 25 states this year — plus three pending federal noncompete bills, D.C.’s new law to ban most noncompetes, and a bill to rein in D.C’s new law before it becomes effective (which is anticipated to be in April 2022). Today’s post discusses New Jersey’s proposed noncompete legislation.
On Thursday, July 15, 2021, United States District Court Judge Hillman issued what I believe is the first (readily available, anyway) non-dicta, substantive decision on the Massachusetts Noncompetition Agreement Act (the MNAA). Read more about Judge Hillman dismissal of a claim based on a nonconforming noncompete in KPM Analytics North America Corporation v. Blue Sun Scientific, LLC (C.A. No. 4:21-cv-10572-TSH).
The D.C. Council held two proceedings related to its recent noncompete ban last week. During both, at-Large Councilmember Elisa Silverman recommended pushing back the implementation date of the new law to April 1, 2022. During the hearing, the Council received wide-ranging testimony about a potential amendment: some objective, verifiable input and some partisan rhetoric; some spot on and some inaccurate. Now we wait.
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.
Over the past several years, there have been changes to the noncompete laws in 24 states — plus D.C. In some states (such as Illinois, Oregon, and Nevada), there were even multiple changes to the law over the last few years.

To keep track of it all, we’ve prepared a map as a visual supplement to our Changing Trade Secrets | Noncompete Laws page.
Nevada too has modified its noncompete law. Effective October 1, 2021, among other things, noncompetes cannot be used for hourly workers and employers will be at risk of paying attorney’s fees for violating certain aspects of the law.