By:       Sally A. Piefer

January 5, 2023

Non-compete and non-solicitation agreements have become relatively commonplace. However, these agreements have been under increasing attack by state legislatures across the country. President Biden also expressed that one of the items on his regulatory agenda is to eliminate all non-compete agreements except for those necessary to protect trade secrets.

Back in 2021, President Biden issued an Executive Order on Promoting Competition in the American Economy, which encouraged the Federal Trade Commission (FTC) to ban or limit non-compete agreements. Later that year, the FTC and Department of Justice (DOJ) held a virtual workshop on competition. The FTC believes that non-compete agreements constitute an unfair method of limiting competition and violate Section 5 of the Federal Trade Commission Act.

Earlier this week, the FTC announced that it took legal action against three companies, suing the companies to prevent them from using what the FTC described as unlawful non-compete restrictions. See https://www.ftc.gov/news-events/news/press-releases/2023/01/ftc-cracks-down-companies-impose-harmful-noncompete-restrictions-thousands-workers.

Today, the FTC released a proposed rule that would prohibit all non-compete agreements – except for those entered into between buyers and sellers of a business. The proposed rule, available from https://www.ftc.gov/legal-library/browse/federal-register-notices/non-compete-clause-rulemaking, spans some 200+ pages, and proposes to:

  1. Find that all non-compete clauses are an unfair method of competition and would ban employers from entering into such agreements with employees and independent contractors; and
  2. Require employers to rescind existing non-compete clauses and affirmatively notify employees the contracts are no longer valid.

While the proposed rule states that customer non-solicitation agreements or confidentiality or non-disclosure agreements would not be impacted, the proposed rule also clarifies that these covenants “would be considered non-compete clauses where they are so unusually broad in scope that they function as such.”

If approved, the proposed rule would supersede any state law, regulation or order which is inconsistent with the FTC’s regulation. Public comment on the proposed rule is available for the next 60 days. Employers and other interested individuals can submit comments online at https://www.regulations.gov.

If you have questions about the proposed rule, or any questions about non-compete, non-solicitation and/or confidentiality agreements, please contact Sally Piefer at 414-226-4818 or spiefer@lindner-marsack.com, or contact your regular Lindner & Marsack attorney.