Trade Secrets & Employee Mobility

On Spilling Secrets, our podcast series on the future of non-compete and trade secrets law, our panelists look back on the top trade secrets and non-compete stories of the year:

This year has been a rollercoaster for trade secrets and non-compete law. We’ve seen major legal battles at both the federal and state levels impacting employers across the nation.

In this episode, Epstein Becker Green attorneys Peter A. Steinmeyer, Daniel R. Levy, Katherine G. Rigby, A. Millie Warner, and Erik W. Weibust recap 2024’s most significant updates, including the Federal Trade Commission’s non-compete ban, the National Labor Relations Board’s general counsel memo, state-level trends, and much more.

Over the course of the Biden administration, we have closely monitored parallel efforts by the Federal Trade Commission (FTC) and National Labor Relations Board (NLRB) to ban or limit the use of most non-compete agreements by employers. Now, in the wake of the recent presidential election, the future of these federal efforts is very much up in the air.

Predicting the incoming Trump administration’s position on non-compete bans is not straightforward. For one thing, the politics of non-competes is uncommonly non-partisan. The four states that generally ban non-competes include both very “blue” states (California and Minnesota) and very “red” states (North Dakota and Oklahoma). In addition, Trump advisors and appointees have conflicting views on the issue. On the one hand, former Florida congressman Matt Gaetz, a close advisor to Mr. Trump and his first pick for Attorney General, has previously publicized his support for the FTC’s non-compete ban. On the other hand, the Texas federal judge who blocked the FTC non-compete ban from taking effect nationwide was appointed by Mr. Trump during his first term.

Ultimately, the fate of FTC and NLRB efforts to ban non-competes will be in the hands of the individuals Mr. Trump picks to lead these agencies. Since winning the election, Mr. Trump has been setting records with the pace of his appointments to key posts but has not yet announced his nominees to lead the FTC and NLRB. Recent reporting, however, offers insight into some of the contenders for these posts as well as the likely fate of efforts by these agencies to ban non-competes once Mr. Trump takes office.

On Spilling Secrets, our podcast series on the future of non-compete and trade secrets law, our panelists outline the benefits of intellectual property (IP) audits and trade secret assessments for employers and organizations looking to safeguard their assets:

With non-compete agreements facing continual legal pressure, what are some other ways employers can protect their trade secrets and IP?

In this episode of Spilling Secrets, Epstein Becker Green attorneys Daniel R. Levy, Gregory J. Krabacher, and Hemant Gupta describe how IP audits and trade secret assessments can offer a uniquely targeted approach to protecting sensitive information, ensuring a company has a grasp of the full scope of their assets.

On Spilling Secrets, our podcast series on the future of non-compete and trade secrets law, our panelists connect the enchantment of Harry Potter with the intricacies of trade secrets and restrictive covenants:

Prepare to be spellbound this Halloween as we cast a magical twist on the realm of trade secrets and restrictive covenants! Whether you're a Gryffindor at heart or more of a Slytherin, there's something for every magical mind seeking to safeguard their organization’s trade secrets.

Epstein Becker Green attorneys A. Millie Warner, Jill K. Bigler, and Aime Dempsey team up with Kristen O’Connor—Senior Assistant General Counsel, Employment at Marsh & McLennan Companies—to wave their legal wands over topics such as Professor Snape’s secret potion book, Hermione’s clever jinxes, and much more.

The United States Courts of Appeals for the Fifth and Eleventh Circuits will have their chance to weigh in on the FTC’s Noncompete Ban, which had been scheduled to go into effect on September 4, 2024, but was enjoined a couple of weeks before that date.

First, the Fifth Circuit.  The FTC Noncompete Ban was blocked on a nationwide basis on August 20, 2024, when the United States District Court for the Northern District of Texas issued a memorandum opinion and order in Ryan LLC v. Federal Trade Comm’n, Case No. 3:24-cv-00986-E, granting the plaintiff’s motion for summary judgment and setting aside the Ban.  On October 18, 2024, the FTC filed a Notice of Appeal of the opinion and order to the Fifth Circuit.  The FTC Noncompete Ban remains enjoined during the pendency of this appeal.

In addition to the Fifth Circuit appeal, the FTC is taking a second bite at the proverbial apple, in the Eleventh Circuit.  On August 15, 2024, in Properties of the Villages, Inc. v. Federal Trade Commission, Case No. 5:24-cv-316, the United States District Court for the Middle District of Florida granted the plaintiff’s motion for a preliminary injunction (although limited in scope only to the plaintiff), prohibiting the FTC from enforcing the Noncompete Ban.  This was similar to how the U.S. District Court in Texas had previously ruled, on Ryan LLC’s preliminary injunction motion.  On September 24, 2024, the FTC filed a Notice of Appeal of the Florida District Court’s preliminary injunction to the Eleventh Circuit.

National Labor Relations Board (“Board”) General Counsel Jennifer Abruzzo (“Abruzzo”) issued a General Counsel Memo (Memo GC 25-01) last week signaling that employers could face civil prosecution and significant monetary remedies for using non-compete and so-called “stay-or-pay” provisions in agreements with their employees.The new memo, issued on October 7, 2024, builds on Abruzzo’s earlier General Counsel Memo issued in May 2023, where, as we reported, she outlined her belief that nearly all post-employment non-competes violate employees’ rights under the National Labor Relations Act (the “Act”).

Since Abruzzo’s May 2023 memo, employers have witnessed a number of significant developments in this space, including the Federal Trade Commission’s (“FTC”) issuance of a rule in April 2024 banning the use of most non-competes and a subsequent decision by a Texas federal judge blocking that FTC rule. In June 2024, an NLRB Administrative Law Judge issued a ruling in a case involving an Indiana HVAC company finding that non-competes and non-solicitation clauses violate the Act, a decision currently being appealed to the Board.

In her October 7, 2024 memo, Abruzzo again urges the Board to find non-competes with all employees who are subject to the Act’s jurisdiction (nonmanagerial and nonsupervisory employees) to violate the Act except in a few limited circumstances, arguing that such provisions are frequently “self-enforcing” and deter employee mobility. She also advocates for “make whole” remedies where employers are found to have continued to maintain unlawful non-competes. Specifically, the memo argues that merely voiding such provisions is insufficient and that employees should be afforded the right to seek compensatory relief for the “ill effects” that flow from complying with “unlawful non-compete provisions.”

Last week, employers who use noncompetes got more good news with respect to the Federal Trade Commission’s proposed noncompete ban.

As readers of this blog are probably aware, back in August, the FTC’s noncompete ban was blocked when the United States District Court for the Northern District of Texas issued a memorandum opinion and order in Ryan LLC v. Federal Trade Comm’n, Case No. 3:24-cv-00986-E, granting the plaintiff’s motion for summary judgment and setting aside nationwide the FTC’s noncompete ban that was scheduled to go into effect on September 4, 2024.

Employers who use noncompetes may have breathed a sigh of relief with the Texas Court’s ruling, but a small doubt of uncertainty lingered.  Could another court reach the opposite decision and rule that the FTC noncompete ban may go into effect?

Two other federal lawsuits (one in Pennsylvania and one in Florida) challenging the FTC noncompete ban remained pending, and each had ruled upon a motion for a preliminary injunction regarding the FTC noncompete ban.  Like the Court in Texas, in Properties of the Villages, Inc. v. Federal Trade Commission, Case No. 5:24-cv-316 (M.D. Fla.), the Florida Court granted the plaintiff’s motion for a preliminary injunction (although limited in scope only to the plaintiff), and seemed likely to reach a final decision on the merits in line with the Texas Court. 

On September 12, 2024, the Regional Director of the National Labor Relations Board’s (“NLRB”) Region 22 in Newark, New Jersey, issued an unfair labor practice complaint against a New Jersey building services company, alleging that employee non-hire (or “no poach”) provisions in the company’s contracts with its building clients violate the National Labor Relations Act (the “Act”).

According to the NLRB’s news release, the complaint alleges that Planned Companies D/B/A Planned Building Services, which is a janitorial, building maintenance, and concierge services provider, “has maintained provisions in its contracts with its client buildings that interfere with, and are inherently destructive of, workers’ rights under Sections 8(a)(1) and (3) of the National Labor Relations Act.”  It further alleges that “Planned Companies restricts its client buildings from soliciting its employees to work for them in a similar job classification for a period of six months after the agreement is terminated, or from hiring employees after they leave Planned Companies’ employment. Any entity retained by the client building to replace Planned Companies is also bound by the hiring restriction.” 

A hearing before an NLRB Administrative Law Judge has been set for November 12, 2024.

On Spilling Secrets, our podcast series on the future of non-compete and trade secrets law, our panelists delve into the implications for employers following the recent blockage of the Federal Trade Commission’s (FTC’s) non-compete ban.

On August 20, 2024, the U.S. District Court for the Northern District of Texas invalidated the FTC’s non-compete ban, deeming it arbitrary and capricious and beyond the scope of the agency’s statutory authority.

In this episode of Spilling Secrets, Epstein Becker Green attorneys Peter A. Steinmeyer, Erik W. Weibust, and Paul DeCamp tell us more about the court’s decision to block the ban, what legal challenges remain, and the key considerations for employers moving forward. 

The Connecticut Supreme Court recently held that continued employment may constitute sufficient consideration for noncompete agreements under Connecticut law, but left unclear the parameters of that holding.

In Dur-A-Flex, Inc. v. Dy, Dur-A-Flex, a commercial flooring company, hired Samet Dy as a research chemist in 2004. Years later, in 2011, Dur-A-Flex required Dy to execute a noncompete agreement as a condition of continued employment. The noncompete agreement prohibited Dy from performing any services for a competitor for twenty-four months after his employment terminated. In 2013, Dy resigned and Dur-A-Flex sought to enforce the noncompete. The trial court held that the noncompete was unenforceable because continued employment can never constitute sufficient consideration for a noncompete agreement.

On appeal, the case was transferred from the appellate division to the Connecticut Supreme Court. In a July 2, 2024 decision, the Supreme Court reversed the trial court, which had relied on a 2014 court of appeals decision entitled Thoma v. Oxford Performance Materials, Inc., to hold that “a party giving nothing more than the status quo of continuing employment … offers no consideration [in] exchange for his promise and the promise is, therefore, unenforceable.” The Supreme Court agreed with Dur-A-Flex that Thoma was distinguishable and that a 1934 Connecticut Supreme Court decision called Roessler v. Burwell was controlling. The Court held that under Roessler, “a promise of indefinite, continued employment for an at-will employee in exchange for the employee’s promise not to compete constitutes adequate consideration to form an enforceable agreement.”

As featured in #WorkforceWednesday®: This week, we’re examining the repercussions for employers of a recent court decision that set aside the Federal Trade Commission’s (FTC’s) nationwide non-compete ban:

On August 20, 2024, the U.S. District Court for the Northern District of Texas blocked the FTC’s ban on non-compete agreements nationwide. What does this mean for employers?

Epstein Becker Green attorney Peter A. Steinmeyer tells us what employers should be doing now and outlines the implications of this decision on existing and future non-compete agreements.

Ten days ahead of her self-imposed deadline, Judge Ada Brown of the Northern District of Texas issued a memorandum opinion and order granting the plaintiffs’ motions for summary judgment, setting aside the Federal Trade Commission’s forthcoming Noncompete Ban nationwide, which was set to go into effect on September 4, 2024. In other words, as we predicted, the FTC’s Noncompete Ban is dead nationwide unless and until a Circuit Court of Appeals or the Supreme Court of the United States revives it.  

Judge Brown granted plaintiffs’ summary judgment motion as to every claim under the Administrative Procedures Act (APA) and the Declaratory Judgment Act (DJA), ruling that the FTC exceeded its statutory authority when it issued the Noncompete Ban and that the Noncompete Ban is arbitrary and capricious.

Judge Brown set the tone for her decision by quoting the Supreme Court’s recent opinion in Loper Bright Enters. v. Raimondo, 144 S.Ct. 2244, 2261 (2024), where the Court overruled the principle of Chevron deference established in Chevron U.S.A., Inc. v. Nat’l Res. Def. Council, Inc. (1984), stating: “Congress in 1946 enacted the APA as a check upon administrators whose zeal might otherwise have carried them to excesses not contemplated in legislation creating their offices.”

After what must have been a grueling two-hour and 52-minute oral argument on the merits of a challenge to the FTC’s Final Rule banning noncompetes, Judge Timothy Corrigan of the United States Court for the Middle District of Florida issued a ruling from the bench in Properties of the Villages, Inc. v. Federal Trade Commission, Case No. 5:24-cv-316 granting the plaintiff’s Motion for Stay of Effective Date and Preliminary Injunction.  Importantly, as with the decision in the Northern District of Texas, the court limited the scope of the preliminary injunction to the named plaintiff only.

Judge Corrigan’s swift ruling granting the motion to stay at the completion of the hearing is a welcome decision given the looming September 4, 2024 effective date of the FTC’s noncompete ban. While the court rejected two of plaintiff’s arguments as to success on the merits, the court held that the FTC exceeded its authority under the major questions doctrine.

In particular, the court quoted Supreme Court precedent that “common sense, informed by constitutional structure, tells us that Congress normally intends to make major policy decisions itself, not leave those decisions to agencies[.]”  Judge Corrigan considered the “huge economic impact” the Final Rule would have in transferring value from employers to employees, along with the Final Rule’s political significance preempting state competition laws.  In finding that the plaintiff established a likelihood of success on the major questions doctrine, the Florida court has established a split from the Eastern District of Pennsylvania, which ruled in July that the FTC’s issuance of the Final Rule did not implicate the major questions doctrine.   

On Spilling Secrets, our podcast series on the future of non-compete and trade secrets law, our panelists discuss the ongoing legal challenges to the Federal Trade Commission’s (FTC’s) nationwide non-compete ban and what the future may hold for employers:

On July 23, 2024, a federal judge in Pennsylvania denied a motion to enjoin the FTC’s non-compete ban. This ruling is in direct opposition to one by a district court in Texas that enjoined the ban in early July.

In this episode of Spilling Secrets, Epstein Becker Green attorneys Peter A. Steinmeyer, A. Millie Warner, and Paul DeCamp look into their crystal ball and make their own predictions for how the FTC’s non-compete ban may or may not survive in the courts.

On Spilling Secrets, our podcast series on the future of non-compete and trade secrets law, our panelists discuss the current state of the Federal Trade Commission’s (FTC’s) nationwide non-compete ban amid ongoing legal challenges:

The FTC’s ban on non-competes will go into effect on September 4, 2024, but legal challenges remain. So, how can employers prepare?

In this episode of Spilling Secrets, Epstein Becker Green attorneys Peter A. Steinmeyer, Erik W. Weibust, and Paul DeCamp tell us more about how the U.S. Supreme Court’s overruling of the Chevron doctrine might affect the FTC’s ability to regulate non-competes. They also discuss a Texas court’s preliminary injunction against the FTC’s non-compete ban* and how various legal challenges have led to a somewhat anticlimactic atmosphere in the employment landscape related to the ban.

*On Tuesday, July 23, after this episode was recorded, a federal judge in Pennsylvania reached the opposite conclusion and declined to temporarily halt the FTC’s non-compete ban.

On July 23, 2024, the United States District Court for the Eastern District of Pennsylvania issued an order in ATS Tree Services, LLC v. FTC, Case No. 2:24-cv-01743-KBH, denying Plaintiff ATS Tree Services, LLC’s (“ATS”) motion for preliminary injunction to enjoin the FTC’s Noncompete Ban which, if not enjoined by other courts, will go into effect on September 4, 2024.

Unlike in Ryan LLC v. FTC, Case No. 3:24-cv-00986-E pending in the United States District Court for the Northern District of Texas, which was discussed in our earlier post, where the plaintiffs include the U.S. Chamber of Commerce, which represents companies employing hundreds of thousands, if not millions, of employees, and Ryan LLC, an employer with thousands of employees nationwide, ATS is a tree-care company that requires each of its 12 employees to enter noncompete agreements restricting their ability to work for ATS’s competitors within a specific geographic area for a year after they leave ATS’s employ.[1] ATS filed a motion for preliminary injunction to enjoin the FTC’s rule banning nearly all noncompetes (the “FTC’s Noncompete Ban”), which would invalidate ATS’s noncompetes on September 4, 2024 if not enjoined.

On July 17, 2024, Governor Josh Shapiro approved Pennsylvania’s first statute imposing limitations on the use of noncompetes in the state. The Fair Contracting for Health Care Practitioners Act (the “Act”) prohibits the enforcement of certain noncompete covenants entered into by health care practitioners and employers. Here are the key points of the Act:

• The Act’s effective date is January 1, 2025.
• Subject to certain exceptions, a “noncompete covenant” entered into after January 1, 2025 is “deemed contrary to the public policy and is void and unenforceable by an employer.”
• A “noncompete covenant” is defined as an “agreement that is entered into between an employer and a health care practitioner in this Commonwealth which has the effect of impeding the ability of the health care practitioner to continue treating patients or accepting new patients, either practicing independently or in the employment of a competing employer after the term of employment.”

We previously reported that Ryan LLC (“Plaintiff”) and the United States Chamber of Commerce (“Plaintiff-Intervenor”), in anticipation of the Northern District of Texas’s merits disposition, would likely seek nationwide application of the preliminary injunction staying the Federal Trade Commission’s (“FTC”) Noncompete Rule, or alternatively, that the preliminary injunction be expanded to apply to all of Plaintiff-Intervenor’s members under the associational standing doctrine.

On July 19, 2024, Plaintiff and Plaintiff-Intervenor filed motions seeking exactly that type of relief. 

We previously reported that the U.S. District Court for the Northern District of Texas in Ryan LLC v. Federal Trade Comm’n, Case No. 3:24-cv-00986-E, granted a preliminary injunction staying the Federal Trade Commission’s (“FTC”) final rule banning almost all post-employment noncompetes (the “Noncompete Rule”), but limited the scope of its ruling to only those parties in that case. Following that ruling, on July 10, 2024, the Plaintiff and Plaintiff-intervenors (“Plaintiffs”) filed an Expedited Motion for Limited Reconsideration of the Scope of Preliminary Relief on the issue of associational standing.

On July 11, the court promptly denied Plaintiffs’ motion. In a one-paragraph order, the court held that Plaintiffs had “not shown themselves entitled to the respective relief requested.” Separately, the court entered an “amended briefing schedule for the merits disposition” (the “Briefing Schedule”) that will likely address many of the issues argued in Plaintiffs’ motion for reconsideration. The Briefing Schedule requires that the matter be fully briefed by August 16, 2024, and the court is scheduled to issue a disposition on the merits by August 30, 2024.     

As we all await rulings on the lawsuits challenging the FTC’s Noncompete Rule (one of which may be decided later today), we provide an update on the Knicks/Raptors trade secret case that we previously discussed on EBG’s Spilling Secrets Podcast Series and blogged about here.  Although the Knicks had a successful year on the court, they suffered an in court loss last week to the Toronto Raptors.    

In the March 2024 edition, Bracket-Busting Trade Secret and Non-Compete Disputes in Sports, we discussed the Knicks’ federal court action against the Toronto Raptors for theft of trade secrets.  We noted that the Knicks sought neither a Temporary Restraining Order nor a Preliminary Injunction and that the defendants filed a motion to dismiss or, alternatively, to stay the case pending arbitration before the Commissioner of the NBA.      

In a lawsuit filed in the United States District Court for the Southern District of New York, the Knicks alleged that their former employee and now current Raptors employee, Ikechukwu Azotam, misappropriated the Knicks’ confidential and proprietary information at the behest of the Raptors, in violation of the Defend Trade Secrets Act (“DTSA”), Computer Fraud and Abuse Act (the “CFAA”), as well as various common law claims.  The defendants moved to dismiss or, alternatively, to compel arbitration pursuant to the NBA’s Constitution and By-Laws, which provide that the NBA Commissioner shall have complete and final jurisdiction over any dispute involving two or more members of the NBA. 

On June 26, 2024, Rhode Island Governor Dan McKee vetoed a bill that would have banned nearly all noncompetes and customer non-solicits in the State of Rhode Island.

The Rhode Island legislature passed 2024-H8059 Substitute A, “An Act Relating to Labor and Labor Relations Rhode Island Noncompetition Agreement Act” (the “Bill”), that if enacted, would have banned all new and existing noncompetes except for those “made in connection with the sale of a business.” If the Bill had been passed, it also would have banned all customer non-solicits, although employee non-solicits would have remained enforceable.

This is the final installment of our three-part series discussing employers’ most frequently asked questions in response to the Federal Trade Commission’s (FTC) Final Noncompete Rule (the “Noncompete Rule”).

As reported in Part 2, there are continued attempts at both the federal and state level to ban or restrict the use of noncompetes.  As a result of this ongoing attack on noncompetes, employers have asked a third – and most important – question: “In light of the Noncompete Rule and push by many states to restrict the use of noncompetes, what should we be doing now to best protect our business interests?”

The answer to this often-asked question is to ensure that the company’s trade secret and confidential information is protected to the fullest extent possible through the use of a Trade Secret Assessment, or as we have referred to it: a “Trade Secret Tune-Up."

This is the second installment of our three-part blog series that is intended to respond to employers’ three most frequently asked questions in response to the Federal Trade Commission’s (FTC) Final Noncompete Rule (the “Noncompete Rule”). Part 1 addressed whether employers can seek to enforce their noncompetes pending the anticipated effective date of the Noncompete Rule. 

A second frequently asked question is: “Can we continue to enter into noncompetes with newly hired, or existing, employees?”  The short answer is “yes”, but employers should be aware of some pitfalls.

On Spilling Secrets, our podcast series on the future of non-compete and trade secrets law, we underscore the importance of e-discovery in trade secret and restrictive covenant cases and look at how employers can use electronically stored information (ESI) to protect proprietary information:

There’s a common misperception that ESI just means emails, but it’s much more than that. ESI encompasses anything in digital or electronic form. The departure of an employee is at the root of most trade secret and restrictive covenant litigation. Therefore, when an employee departs, the timely preservation of ESI must be a standard operating procedure.

In this episode of Spilling Secrets, Epstein Becker Green attorneys A. Millie Warner and Elizabeth S. Torkelsen and special guest James Vaughn, Managing Director of iDiscovery Solutions, discuss the complicated field of digital forensics and how employers can effectively manage ESI.

This three-part blog series is intended to identify and respond to three of the most frequently posed questions by employers in response to the Federal Trade Commission’s (FTC) Final Noncompete Rule (the “Noncompete Rule”).

We previously reported on the Federal Trade Commission’s (FTC) Noncompete Rule and the currently pending litigation challenging the Noncompete Rule.  In one of those cases, which was brought in the United States District Court for the Northern District of Texas and consolidated with the lawsuit filed by the United States Chamber of Commerce, the plaintiffs filed a Motion for Stay and Preliminary Injunction. The court has indicated that it intends to rule on that motion by July 3, 2024.

As we have previously written, on April 23, 2024, the Federal Trade Commission (FTC) issued a sweeping final rule (“the Rule”) that purports to ban virtually all post-employment noncompete agreements in the United States. The Rule was formally published in the Federal Register on May 7, 2024, and will go into effect 120 days later, on September 4, 2024--if it survives the legal challenges that were filed in quick response.

While justice may not always be swift, the news about the Rule and challenges to it have developed at breakneck speed by many litigators’ standards over the ...

Now on Spilling Secrets, our podcast series on the future of non-compete and trade secrets law: On April 23, 2024, the FTC announced its final rule banning virtually all non-compete agreements nationwide. Employers across the nation are looking for answers.

In this episode of Spilling Secrets, Epstein Becker Green attorneys Peter A. Steinmeyer and Erik W. Weibust lay out the details of the ban, the legal challenges already underway,* and the actions employers should be taking.

*EBG is representing amici in one legal challenge: the U.S. Chamber of Commerce litigation.

Our colleagues Peter Steinmeyer and Erik Weibust at Epstein Becker Green co-authored an article in Thomson Reuters Practical Law, titled “Expert Q&A on the FTC's Final Rule Banning Post-Employment Non-Competes.”

Following is an excerpt (see below to download the full version in PDF format):

On April 24, 2024, the Federal Trade Commission (FTC) announced the issuance of a final rule banning employers from entering into, enforcing, or attempting to enforce post-employment non-compete clauses with workers, subject to limited exceptions, and invalidating all ...

We recently reported on the Federal Trade Commission’s (FTC) 3-2 vote to issue its final noncompete rule that, unless it is enjoined, would ban all new noncompetes and a majority of existing noncompetes (the Noncompete Rule).  As expected, within hours of the FTC’s vote on the final noncompete rule, Ryan, LLC, a leading global tax services and software provider, filed a lawsuit challenging the Noncompete Rule, and shortly thereafter the Chamber of Commerce of the United States of America (the U.S. Chamber) followed suit, filing its own lawsuit seeking to vacate and set aside the ...

As expected, the Federal Trade Commission (FTC) voted 3-2 yesterday to issue its final noncompete rule, with only a few changes from the proposed rule that are discussed below. Unless it is enjoined, which we expect, the rule will become effective 120 days after publication of the final version in the Federal Register.

If the final rule survives the legal challenges, which are likely to make it all the way to the United States Supreme Court, all new non-competes would be banned. Except for existing non-competes for senior executives (as defined below), all existing noncompetes with ...

[Update: On April 23, 2024, the Federal Trade Commission voted 3-2 to issue its final noncompete rule, with only a few changes from the proposed rule. Analysis of the final rule, the changes, and what may come next are discussed in this blog post.]

On April 16, 2024, the FTC announced that it will hold a special Open Commission Meeting on April 23, 2024 to vote on its proposed rule to ban the use of non-compete clauses in employment contracts, which has been pending since January 2023.  

As we reported then, the proposed rule, as drafted, would prohibit employers throughout the United States ...

On March 29, 2024, Maine Governor Janet T. Mills vetoed a bill that would have banned all employee noncompete agreements in the State of Maine.  Both chambers of the Maine legislature passed L.D. 1496, An Act to Prohibit Noncompete Clauses, that if enacted, would have banned employers from entering into noncompete clauses with employees and would have permitted noncompete agreements in Maine in only three limited circumstances: (i) the sale of a business; (ii) a shareholder in a limited liability company who sells or disposes all of the shareholders shares; or (iii) member of a ...

Ohio has long recognized the enforceability of non-compete agreements. Broadly speaking, a court can do one of three things with an unenforceable non-compete agreement: (1) the court can apply the “red pencil” doctrine and invalidate the entire agreement; (2) the court can apply the “blue pencil” doctrine and strike the unenforceable provisions; or (3) the court can modify the non-compete agreement to make it enforceable.

In 1975, the Ohio Supreme Court adopted a rule of “reasonableness” when determining whether to enforce a non-compete agreement, holding in ...

Washington State is making a few important amendments to its existing noncompete statute.  The amendments go into effect on June 6, 2024.

Back on January 1, 2020, Washington state enacted a noncompete statute that set limits on the use of noncompetition agreements, including the following:

• Non-competition provisions for workers who earn less than certain annual thresholds: (currently $120,559.99 for employees and $301,399.98 for independent contractors) are unenforceable.
• Non-competes exceeding 18 months are unenforceable.
• Excluded from the definition of ...

Now on Spilling Secrets, our podcast series on the future of non-compete and trade secrets law:

As college basketball madness sweeps across the nation this March, we’re seizing the opportunity to explore the intriguing intersection of trade secrets law and the sports world.

In this episode of Spilling Secrets, Epstein Becker Green attorneys Peter A. Steinmeyer, James P. Flynn, Daniel R. Levy, and Susan Gross Sholinsky appeal to both sports fans and lawyers alike to examine the strategic use of non-compete agreements across various sports. From scrutinizing non-competes in football and dissecting no-poaching arrangements in golf to unraveling compelling trade secrets in boxing, the team embarks on an examination of the legal dynamics shaping competitive sports.

On January 1, 2022, amendments to the Illinois Freedom to Work Act, 820 ILCS 90/1, et seq. (the “Act”), became effective, trumpeting reforms and limitations on an employer’s ability to enter into covenants not to compete and covenants not to solicit with certain categories of employees whose actual or expected annualized rate of earnings fall below certain thresholds.

Now, just two short years later, the Illinois state legislature has introduced four different bills containing proposed amendments to the Act that would undermine, if not completely obliterate, the Act’s ...

Last summer, the New York State legislature made waves when it passed a bill that effectively would have banned noncompete agreements.  New York’s Governor vetoed that bill in late December 2023.  This year, however, it is expected that the legislature will consider, and maybe pass, a less draconian bill that the Governor may be more likely sign.  Instead of an outright ban, such a bill might limit the use of noncompetes by, for example, prohibiting noncompetes only for certain types of employees, such as low wage earners.

While the business and legal communities await the state ...

In a bombshell ruling last year that upended longstanding Delaware law, the Delaware Chancery Court ruled in Ainslie v. Cantor Fitzgerald, L.P., 2023 WL 106924 (Del. Ch. Jan. 4, 2023), that forfeiture-for-competition clauses, under which departing employees must forfeit certain long-term incentive compensation if they join a competitor, are akin to post-employment noncompetes and other restraints of trade.  As a result, the Chancery Court determined these forfeiture provisions should be analyzed under a reasonableness standard rather than the employee choice doctrine ...

Now on Spilling Secrets, our podcast series on the future of non-compete and trade secrets law:

On an employee’s first day, employers can begin protecting trade secrets by ensuring they maintain ownership over all intellectual property (IP) that the employee will create.

In this episode of Spilling Secrets, Epstein Becker Green attorneys A. Millie Warner, James P. Flynn, Hemant Gupta, and Adelee Traylor dive into the key steps employers can take to maintain IP ownership, including using the right verb tense in employee IP provisions.

Thomson Reuters Practical Law has released the 2024 update to “Preparing for Non-Compete Litigation,” co-authored by Peter A. Steinmeyer.

The Note describes the steps an employer can take to prepare to successfully litigate a non-compete action, the primary options for enforcing a non-compete agreement, and the strategic decisions involved with each option. It discusses gathering evidence, assessing the enforceability of a non-compete, considerations before initiating legal action, cease and desist letters, seeking declaratory judgments, damages, and ...

Thomson Reuters Practical Law has released the 2024 update to “Garden Leave Provisions in Employment Agreements,” co-authored by Peter A. Steinmeyer and Lauri F. Rasnick, Members of the Firm in the Employment, Labor & Workforce Management practice, in the firm’s Chicago and New York offices, respectively.

The Note discusses garden leave provisions in employment agreements as an alternative or a companion to traditional employee non-compete agreements. It addresses the differences between garden leave and non-compete provisions, the benefits and drawbacks ...

Our colleague attorney Phillip Antablin recently joined a roundtable discussion hosted by Russell Beck, regarding California’s expanded anti-restrictive covenants laws under Business and Professions Code Section 16600.

Phillip joined as many as 50 restrictive covenant, trade secrets, and employee mobility lawyers from around the country to discuss:

• the amendments to Business and Professions Code Section 16600 the new notice requirement to current and former employees that their restrictive covenant is void;
• Section 16600’s application as a whole, including Section ...

2023 started off with a bang, and it is certainly not ending with a whimper. On January 4, 2023, the Federal Trade Commission (FTC) announced the settlement of two enforcement actions against employers arising out of their use and enforcement of noncompetes. The very next day, the FTC proposed a rule that would ban noncompetes nationwide if enacted (which we do not believe will ever happen), with only a very narrow exception for noncompetes entered into in connection with the sale of a business.

The year only continued to get more turbulent in this area of law, with Minnesota banning ...

The Clash famously asked “Should I stay, or should I go?” on their 1982 album, Combat Rock, and with recent attacks on non-competes at both the state and federal level, some employers are imposing additional costs on employees who take advantage of an employer’s training opportunities only to leave and join a competitor. So-called “stay or pay” clauses, or training-repayment-agreement-provisions (TRAPs), typically require an employee to pay the employer the cost the employer incurred to train the employee if the employee leaves their employment within a certain ...

Now on Spilling Secrets, our podcast series on the future of non-compete and trade secrets law:

The year 2023 was significant for trade secret and non-compete law, full of enforcement actions and rulemaking on the federal level and legislation in the states.

In this episode of Spilling Secrets, Epstein Becker Green attorneys Peter A. Steinmeyer, Katherine Rigby, A. Millie Warner, and Erik W. Weibust present their lineup for the “top 10” trade secret and non-compete developments of 2023.

Podcast: Amazon Music, Apple Podcasts, Audacy, Audible, Deezer, Goodpods, iHeartRadio, Overcast, Pandora, Player FM, Pocket Casts, Spotify, YouTube Music.

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Tune in to Spilling Secrets, a podcast series on the ...

Just over a year into the implementation of the Washington, D.C. Ban on Non-Compete Agreements, as amended by the Non-Compete Clarification Amendment Act of 2022 (together, the “D.C. Non-Compete Ban”), the District of Columbia has begun enforcement of the law, which prohibits non-compete agreements for most D.C. employees earning less than $150,000 annually.^* For further analysis of the law as amended, please see our prior blog post here.

On November 17, 2023, D.C. Attorney General Brian L. Schwalb announced that the Office of the Attorney General (“OAG”) settled three ...

As we predicted when the New York legislature passed a bill that would ban noncompetes in the state without even an exception for the sale of a business, Governor Kathy Hochul has said that she wants changes to the bill – called chapter amendments – before she will sign it. According to Bloomberg, Governor Hochul told reporters, “What I’m looking at right now is striking the right balance between protecting low and middle-income workers, giving them flexibility to have mobility to go from job to job as they continue up the ladder of success. But those who are successful have a lot ...

As federal administrative agencies wade further into rulemaking and adjudicative efforts to outlaw noncompetes and restrictive covenants, defendants are beginning to raise preemption arguments in response to state court breach of contract claims on the topic.

A recent case shows defendants are taking things into their own hands and not waiting for the Federal Trade Commission (“FTC”) to conclude its announced rulemaking on the subject or for the National Labor Relations Board (“NLRB”) to rule on the NLRB General Counsel’s stated position that nearly all noncompetes ...

As we discussed earlier this year, the U.S. Department of Justice (“DOJ”) in recent years has brought numerous criminal prosecutions against companies accused of engaging in so-called “naked” no-poach agreements, i.e., agreements among competing businesses to restrict hiring or compensation of employees, outside of any legitimate collaborative relationship.  The DOJ’s efforts in this regard were spurred by the issuance in 2016 of Antitrust Guidance for Human Resources Professionals, which was a warning issued by the DOJ and the Federal Trade Commission ...

Now on Spilling Secrets, our podcast series on the future of non-compete and trade secrets law:

Restrictive covenants, such as non-compete and non-solicitation agreements, are regulated differently worldwide. In this episode of Spilling Secrets, Epstein Becker Green attorneys Peter A. Steinmeyer, A. Millie Warner, and Susan Gross Sholinsky take a trip around the world with Andrew Lilley, Head of Employment Law at Deloitte Legal, to highlight some of these unique distinctions and discuss how global employers can navigate these differences.

Podcast: Amazon Music, Apple Podcasts, Audacy, Audible, Deezer, Goodpods, iHeartRadio, Overcast, Pandora, Player FM, Pocket Casts, Spotify, YouTube Music.

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California’s Business and Professions Code (the “Code”) has long been the nation’s strictest law on restrictive covenants, essentially prohibiting employee noncompetition agreements except in limited circumstances.

Two bills recently signed into law by Governor Gavin Newsom reiterate and broaden the state’s restrictions on employee noncompetes. SB 699, which goes into effect January 1, 2024, and which we previously wrote about here, broadens the Code’s restrictions and provides individuals with new legal remedies. AB 1076 codifies existing California case ...

In this special live episode of our Spilling Secrets podcast series, Epstein Becker Green attorneys Peter A. Steinmeyer and Erik W. Weibust sat down with guests Gina Sarracino, Chief Counsel of Employment and Labor at Thomson Reuters, and Evan Michael, Executive Vice President and General Counsel at NFP, to discuss the hectic state of non-competes in 2023.

Podcast: Amazon Music, Apple Podcasts, Audacy, Audible, Deezer, Goodpods, iHeartRadio, Overcast, Pandora, Player FM, Pocket Casts, Spotify, YouTube Music.

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Tune in to Spilling Secrets, a podcast series on the future of trade secrets and non-compete law.

Each episode features an all-star panel of attorneys talking about real life problems ...

Thomson Reuters Practical Law has released the 2023 update to “Non-Compete Laws: Massachusetts,” a Q&A guide to non-compete agreements between employers and employees for private employers in Massachusetts, authored by our colleagues David J. Clark and Erik Weibust, attorneys at Epstein Becker Green.

Following is an excerpt:

This Q&A addresses enforcement and drafting considerations for restrictive covenants such as post-employment covenants not to compete and non-solicitation of customers and employees. Federal, local, or municipal law may impose ...

Thomson Reuters Practical Law has released the 2023 update to “Non-Compete Laws: Illinois,” a Q&A guide to non-compete agreements between employers and employees for private employers in Illinois, co-authored by our colleagues Peter A. Steinmeyer and David J. Clark at Epstein Becker Green.

Following is an excerpt:

This Q&A addresses enforcement and drafting considerations for restrictive covenants such as post-employment covenants not to compete and non-solicitation of customers and employees. Federal, local, or municipal law may impose additional or ...

For many of us, summer holidays are over, the kids are back in school, and it is a good time to take stock of languishing items on our to-do lists.  For employers that have restrictive covenant agreements with employees in Georgia, one of those to-do items should be to review the employee non-solicitation provisions in their employment agreements.

Earlier this summer, in North American Senior Benefits v. Wimmer, the Georgia Court of Appeals issued a decision that likely will make it substantially more challenging for employers to enforce employee non-solicitation provisions.  That ...

As we have previously discussed, the National Labor Relations Board’s General Counsel is seeking to invalidate noncompete agreements on the untested legal theory that they violate the National Labor Relations Act. The NLRB recently fired its latest salvo in those efforts to outlaw noncompetes.

 On September 1, 2023, the Regional Director of Region 9 of the NLRB, located in Cincinnati, Ohio, issued a Consolidated Complaint against Harper Holdings, LLC d/b/a Juvly Aesthetics (the “Company”), alleging that the Company maintains unlawful noncompete provisions in ...

This year, California was one of many states to enact legislation restricting noncompetes.  California has long had the strictest noncompete law, and employee noncompetes are already void under California Business and Professions Code § 16600 (“Section 16600”).  On September 1, 2023, California passed new legislation (“SB 699”) that further broadens Section 16600 and provides employees with new legal remedies.

The Current Law

Unless one of the narrow statutory exceptions applies, Section 16600 provides that any contract restraining a person from ...

Thomson Reuters Practical Law has released the 2023 update to “Trade Secret Laws: Illinois,” a Q&A guide on trade secrets and confidentiality for private employers in Illinois, co-authored by Peter A. Steinmeyer and David J. Clark, Members of the Firm in the Employment, Labor & Workforce Management practice.

Following is an excerpt:

This Q&A addresses the state-specific definition of trade secrets and the legal requirements relating to protecting them. Federal, local, or municipal law may impose additional or different requirements.

Download the full Practice ...

The New York Knicks made headlines last week when they sued the Toronto Raptors for theft of confidential and proprietary information, including scouting reports, play frequency reports, and other confidential information compiled by the Knicks coaching staff. According to the Complaint, which was filed in the Southern District of New York, former Knicks employee Ikechukwu Azotam illegally procured and disclosed confidential information to employees of the Raptors, including Raptors head coach Darko Rajaković and player development coach Noah Lewis (Azotam, Rajaković ...

Now on Spilling Secrets, our podcast series on the future of non-compete and trade secrets law:

Most restrictive covenant disputes are resolved out of court. However, what about the restrictive covenant disputes that lead not only to litigation but also to litigation beyond the injunction phase?

Our all-star panel of attorneys—Peter A. Steinmeyer, Katherine G. Rigby, A. Millie Warner, and Erik W. Weibust—discuss more.

Now on Spilling Secrets, our podcast series on the future of non-compete and trade secrets law:

On May 31, 2023, National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo issued a memo stating her position that non-compete agreements violate the National Labor Relations Act. So, what does this mean for employers?

As we wrote almost exactly a year ago – months before the Federal Trade Commission (FTC) issued its proposed noncompete rule – the Supreme Court’s decision in West Virginia v. EPA made it clear that the FTC does not have the authority to use its rulemaking powers to ban (or otherwise regulate) noncompetition agreements because it does not have “clear congressional authorization” to do so. The Supreme Court’s decision last week striking down the current Administration’s student loan forgiveness plan further confirms that the Supreme Court would likely strike down any noncompete rule promulgated by the FTC under the Major Questions Doctrine. See Biden v. Nebraska, 600 U.S. __ (June 30, 2023).

As we previously reported, Minnesota will soon become only the fourth state (along with California, Oklahoma and North Dakota) to ban noncompetes. 

The state’s new law renders void and unenforceable all covenants not to compete entered by employees or independent contractors on or after July 1, 2023.  The only exceptions are noncompetes in agreements relating to the sale or dissolution of a business. 

As featured in #WorkforceWednesday:  New York State’s noncompete ban has passed both houses of the state legislature and now awaits Governor Kathy Hochul’s signature.

Epstein Becker Green attorney David J. Clark details how this proposed ban would affect employers and reveals how noncompete bans have become a growing trend throughout the country.

On June 21, 2023, the Federal Reserve Bank of Minneapolis issued a report entitled “New data on non-compete contracts and what they mean for workers” that calls into question the assumptions made by the Federal Trade Commission (FTC) in its recent rulemaking efforts.[1]

The report begins by stating what we have been saying for a long time: that “relatively little survey evidence [is] available” about the actual effect of noncompetes on workers. In other words, it is not that there is substantial evidence that noncompetes help workers (although there are studies showing that they can in certain circumstances), but rather that the data is slim and, contrary to what the FTC and the media might lead the public to believe, there is likewise not settled evidence that noncompetes harm workers. As the Minnesota Fed points out, “[t]he recent explosion of public discussion about non-competes has made clear the need for better and more systematic data collection.”

Earlier today (June 20, 2023) the New York State Assembly voted in favor of a noncompete ban that was passed by the New York State Senate on June 7.  In previous posts here and here, we have discussed in detail this bill that would ban noncompete agreements in New York State.  The next stop for the bill is the office of Governor Kathy Hochul, who many believe is likely to sign it into law.  Though it may be difficult to believe, New York is on the precipice of becoming the fifth state (after California, North Dakota, Oklahoma and, as of July 1, 2023, Minnesota) to ban noncompetes.  Stay tuned…

Two states recently have enacted restrictions on noncompete agreements being used within certain professions.

In Maine, on June 1, 2023, the Governor signed into law LD 688/ HP 457, entitled “An Act to Protect Access to Veterinary Care by Prohibiting Noncompete Agreements.”  The act amends Maine Revised Statute title 26, § 599-A, which already prohibits an employer from entering into a noncompete with an employee if the employee is earning wages at or below 400% of the federal poverty level. The new amendment expands the noncompete ban to licensed Maine veterinarians, with a carveout for those with an ownership interest in a practice.

Earlier this year, legislation was proposed in New York that would effectively ban all post-employment noncompetes. Few paid close attention to the proposals, ostensibly because similar legislation is proposed virtually every year in states across the country, including in New York, and typically nothing comes of it (Minnesota being the major exception, having recently passed a noncompete ban that goes into effect July 1, 2023).

New York State may soon join the growing list of jurisdictions restricting or banning noncompete agreements. On June 7, 2023 the New York State Senate passed S 3100A (the “Bill”), which would prohibit employers from seeking, requiring, demanding, or accepting certain noncompete agreements.

The National Labor Relations Board (NLRB) has found its first target under recent guidance issued in a memo from its General Counsel claiming that noncompete agreements may violate the National Labor Relations Act (NLRA). According to Bloomberg Law, “[t]he NLRB’s first enforcement action against an employer’s noncompete agreement targeted a Michigan cannabis processor and ended with a recent private settlement resolving the alleged labor law violations.” (The enforcement action predates the guidance memo). Bloomberg obtained redacted documents from the case via a Freedom of Information Act request.

On June 2, 2023, the Federal Trade Commission (FTC) announced that it finalized a consent order with Anchor Glass Container Corp. (“Anchor Glass”).

This consent order follows the FTC’s administrative complaint, filed in March 2023, against Anchor Glass and its controlling owners (the “Respondents”). The FTC’s complaint alleged that Anchor had entered into non-compete agreements with more than 300 employees and that these non-compete agreements were unfair and had the “tendency or likely effect of harming competition, consumers, and workers . . . .” 

On May 17, 2023, U.S. Senator Rob Wyden (D-OR) announced the release of a long-awaited report on the U.S. Government Accountability Office’s multi-year investigation into the use of noncompete agreements across the U.S. labor market. In announcing the release, Senator Wyden said that the GAO report “highlights the problems of noncompete agreements – particularly their impact on limiting workers’ fundamental freedom to change jobs,” and pledged to “fight tooth and nail for fair labor laws that protect workers and promote the creation of new businesses in Oregon and nationwide.”

The National Labor Relations Board’s top lawyer, Jennifer Abruzzo, issued  a General Counsel memo today instructing the Labor Board’s Regional Directors of her position  that noncompete clauses for employees protected by the National Labor Relations Act (NLRA) (i.e., nonmanagerial and nonsupervisory employees) in employment contracts and severance agreements violate federal labor law except in limited circumstances. The memo, while not law, outlines her legal theory which she will present to the National Labor Relations Board, which makes law primarily through adjudication of unfair labor practice cases.  The memo instructs the agency’s field offices of the position that the General Counsel is instructing them to take when investigating unfair labor practice charges claiming that such clauses interfere with employees’ rights under the NLRA.

For the last decade, one of the biggest issues in Illinois noncompete law has been what constitutes adequate consideration for a post-employment restrictive covenant, apart from employment lasting at least two years after the agreement was signed.  The “24 month rule” set forth in Fifield v. Premier Dealer Services, Inc., 2013 IL App (1^st) 120327 has caused much head-scratching, and the Illinois legislature essentially punted on the issue in the recent amendments to the Illinois Freedom to Work Act, 820 ILCS 90/1, et seq. (effective as of January 1, 2022).  (Full disclosure: One of the authors of this post advised the Illinois Chamber of Commerce in its negotiations with the State legislature over this law and, hence, can speak from personal experience on the legislative history of this “punt.”)

As expected, on May 24, 2023, Governor Tim Walz signed a new law banning noncompete agreements in Minnesota.  The ban will be effective for such agreements entered on or after July 1, 2023.

By enacting the Omnibus Jobs, Economic Development, Labor and Industry appropriations bill (MN SF 30035), Minnesota becomes only the fourth state (along with California, Oklahoma and North Dakota) to ban noncompetes. 

The day after obtaining federal brokerage authority for the logistics company he formed a month earlier, Christopher Johnson, a North Carolina resident, resigned from his employment with Cincinnati-based Total Quality Logistics, LLC (“TQL”). TQL then sued Johnson and his company Patriot Logistics (“Patriot”) in the Clermont County Court of Common Pleas, alleging Johnson breached his employment agreement and misappropriated trade secrets in forming Patriot while still employed by TQL.

Johnson and Patriot removed the case to federal district court based on diversity jurisdiction. TQL moved to remand the case back to state court, arguing the $75,000 amount in controversy requirement was not met. After the federal court denied TQL’s remand motion, TQL voluntarily dismissed the case and refiled in state court. Johnson and Patriot removed the case yet again.

According to Bloomberg, The Federal Trade Commission (“FTC”) is not expected to vote on the final version of a new rule that would ban noncompete clauses in employment contracts until April 2024. The rule defines a “non-compete clause” as “a contractual term between an employer and a worker that prevents the worker from seeking or accepting employment with a person, or operating a business, after the conclusion of the worker’s employment with the employer.”

As we previously reported, the proposed rule would ban employers from imposing noncompete agreements on their employees. The rule would also require employers to rescind all preexisting noncompete agreements and to notify all employees who had been subject to a noncompete agreement of the recission. Although the proposed rule would not prohibit other kinds of employment restrictions, such as nondisclosure agreements, certain restrictions that are overbroad could be subject to the new rule. For example, a non-disclosure agreement between an employer and an employee that is written so broadly that it effectively precludes the employee from working in the same field would be considered a “de facto” noncompete clause.

Earlier this year, the United States Department of Justice (“DOJ”) announced that it was launching the Disruptive Technology Strike Force (“Strike Force”) in an effort “to target illicit actors, strengthen supply chains and protect critical technological assets from being acquired or used by nation-state adversaries.”  The DOJ’s initial announcement can be found here.  The Strike Force is co-led by the DOJ and Commerce Department with the goal of countering efforts by hostile nation-states seeking to illegally acquire sensitive United States technology.  On May 16, 2023, the DOJ announced criminal charges in five cases from five different U.S. Attorney’s Offices in connection with the Strike Force’s efforts.  Two of the cases involve allegations of trade secret theft from U.S. technology companies with the intent to market the technology in foreign countries. 

Now on Spilling Secrets, our podcast series on the future of non-compete and trade secrets law:

Human capital often drives the value of merger and acquisition (M&A) deals in the health care industry. Buyers involved in these deals must retain key employees to secure that value.

Epstein Becker Green’s Spilling Secrets hosts Erik W. Weibust and Katherine G. Rigby join forces with the Diagnosing Health Care podcast hosts Daniel L. Fahey and Timothy J. Murphy to talk about strategies to retain these employees.

A Ruling and Order issued on April 28, 2023 by the U.S. District Court for the District of Connecticut in United States v. Patel, et al. ran the government’s losing streak to four failed trials seeking to criminally prosecute alleged wage-fixing and no-poach agreements. 

To review, in 2016 the Department of Justice (“DOJ”) and the Federal Trade Commission (“FTC”) issued Antitrust Guidance for Human Resources Professionals that warned of potential criminal prosecution for so-called “naked” no-poach agreements, i.e., agreements among competing businesses to restrict hiring or compensation of employees, untethered to any legitimate collaborative relationship. 

Epstein Becker Green (EBG) is pleased to announce the launch of our 50-State Noncompete Survey, designed to give employers a desktop guide to the great variety and specificity of noncompete laws across the United States.

EBG's 50-State Noncompete Survey is here to help provide key insights on all of the following areas of noncompete law in your state:

It is no secret that political winds are blowing against the practice of employers requiring certain employees to sign non-competition agreements, as demonstrated most saliently earlier this year when the Federal Trade Commission (“FTC”) introduced its proposed rule that would ban non-competes nationwide, with retroactive effect.  While thousands of comments have been submitted to the FTC regarding that proposed rule (and the comment period is scheduled to close this week), legislators in many states have been busy introducing legislation that would ban or limit the use of non-competes.

Now on Spilling Secrets, our podcast series on the future of non-compete and trade secrets law:

On January 5, 2023, the Federal Trade Commission (FTC) announced a proposed rule that would ban employers from using non-compete clauses.

Panelists Peter A. Steinmeyer and Erik W. Weibust and featured guest attorney Stuart M. Gerson discuss the proposed rule and next steps for employers.

FTC Commissioner Christine Wilson, published an Op-Ed in the Wall Street Journal today in which she announced her resignation from the FTC and explained her reasoning. Readers may recall that Commissioner Wilson was the lone dissenting voice on the FTC’s proposed rule banning noncompetes nationwide.

Thomson Reuters Practical Law has released the 2023 update to “Garden Leave Provisions in Employment Agreements,” co-authored by our colleagues Peter A. Steinmeyer and Lauri F. Rasnick.

The Note discusses garden leave provisions in employment agreements as an alternative or a companion to traditional employee non-compete agreements. It addresses the differences between garden leave and non-compete provisions, the benefits and drawbacks of garden leave, and drafting considerations for employers that want to use garden leave provisions. This Note applies to private employers and is jurisdiction neutral.

Thomson Reuters Practical Law has released the 2023 update to “Preparing for Non-Compete Litigation,” co-authored by our colleague Peter A. Steinmeyer.

Following is an excerpt (see below to download the full version in PDF format):

Non-compete litigation is typically fast-paced and expensive. An employer must act quickly when it suspects that an employee or former employee is violating a noncompete agreement (also referred to as a non-competition agreement or non-compete). It is critical to confirm that there is sufficient factual and legal support before initiating ...

The Federal Trade Commission (FTC) has announced that it will be hosting a public forum on February 16, 2022, from 12:00-3:00 p.m. ET, to discuss its proposed nationwide noncompete ban. The forum is intended to supplement the FTC’s request for written comments, which as of today have exceeded 10,000. According to the FTC, “[t]he commission will hear from a series of speakers who have been subjected to noncompete restrictions, as well as business owners who have experience with noncompetes.” It is unclear whether any of the “business owners who have experience with ...

Senators Chris Murphy (D-CT) and Todd Young (R-IN) introduced legislation on February 1, 2023 entitled the Workforce Mobility Act (the “Act”). This bill has been introduced previously, but never made it out of committee.

Our colleagues Peter A. Steinmeyer, Erik W. Weibust, and Angel A. Perez co-authored an article in Thomson Reuters Practical Law's The Journal, titled "Restrictive Covenants: Ethical Issues for Attorneys."

As we predicted, earlier today, 100 industry organizations submitted a request to the Federal Trade Commission (FTC) to extend the comment period for its proposed rule banning noncompetes nationwide by an additional 60 days. According to the letter, “[t]he regulated community should be given sufficient time to assess the potential consequences of the rulemaking and develop insightful comments for the Commission to consider.” The letter further states:

As previously reported, the Federal Trade Commission (FTC) proposed a rule on January 5, 2023, that would ban noncompetes nationwide. There are serious questions about the FTC’s authority to promulgate such a rule and many practical reasons why such a sweeping approach is unwarranted—in particular at the federal level. The period for submitting formal comments to the proposed rule lasts 60 days following publication of the proposed rule in the Federal Register. The FTC did not file the proposed rule with the Federal Register until January 18, 2023, and it will not be published until January 19, 2023, meaning that the comment period will end on March 20, 2023—not March 10, 2023, as the FTC initially announced. We are told that there will be a formal request to extend the comment period for an additional 60 days, or until May 19, 2023, and that the FTC is likely to grant the request.

Now on Spilling Secrets, our podcast series on the future of non-compete and trade secrets law:

The holidays are over, and year-end bonuses are being paid, making January and the first quarter a common time for employees to jump ship to work for a competitor.

Our all-star panel of attorneys – Pete Steinmeyer, Kate Rigby, Millie Warner, and Erik Weibust – discuss what an employer should do in this situation.

Our colleagues Erik W. Weibust, Peter A. Steinmeyer, and Stuart M. Gerson co-authored an article in the Legal Backgrounder, published by the Washington Legal Foundation, titled “After 200+ Years Under State Law, FTC Proposes to Sweep Away All Noncompetes in Unauthorized Federal Power Grab.”

Following is an excerpt:

“Practices that three unelected bureaucrats find distasteful will be labeled with nefarious adjectives and summarily condemned, with little to no evidence of harm to competition. I fear the consequences for our economy, and for the FTC as an institution”

 – FTC Commissioner Christine S. Wilson

The Federal Trade Commission (“FTC”) started 2023 with a bang. In addition to issuing a proposed Rule that would ban post-employment noncompetes nationwide, the FTC announced that it had settled two previously undisclosed enforcement actions and entered into proposed consent orders with three employers based on a novel legal theory.  According to the Complaints filed in each action, the FTC contends that the defendant employers’ use of broad post-employment non-compete agreements constituted “unfair methods of competition” in violation of Section 5 of the FTC Act. Unfortunately, the timing of the announcement of these enforcement actions—one day before announcing the proposed rule—seems intended to discourage employers from challenging the FTC’s authority to issue rules banning, or otherwise regulating, noncompetes, and to intimidate the business community.

On Thursday, January 5, 2023, the Federal Trade Commission (FTC) made headlines with its announcement that it is proposing a new rule that would ban employers from using noncompete clauses (the “rule”).

The rule, as drafted, would prohibit employers throughout the United States from relying on or enforcing covenants to not compete. It is retroactive, further requiring the rescission of any such restrictive covenants currently in existence by an undetermined compliance date (which will be at least 240 days from now, at the earliest). The rule also specifies that the federal regulations would supersede any contradictory state law.

The announcement, while stunning to many, is a development that we anticipated and questioned halfway through 2022 and saw coming by the end of the year.

Thomson Reuters Practical Law has released the 2022 update to “Non-Compete Laws: Connecticut,” a Q&A guide to non-compete agreements between employers and employees for private employers in Connecticut, co-authored by our colleagues David S. Poppick and Elizabeth S. Torkelsen, attorneys at Epstein Becker Green.

Now on Spilling Secrets, our podcast series on the future of non-compete and trade secrets law:

The year is coming to a close, and it was a big one in the world of trade secrets and non-competes. In this episode, we’re running down the key trends of 2022.

Our colleagues Erik Weibust, Carter DeLorme, and Philip Antablin co-authored an article in AHLA’s Health Law Connections, titled “Securing Key Employees in Health Care M&A Transactions with Restrictive Covenants.” (Read the full version – subscription required.) 

Thomson Reuters Practical Law has released the 2022 update to “Non-Compete Laws: Illinois,” a Q&A guide to non-compete agreements between employers and employees for private employers in Illinois, co-authored by our colleagues Peter Steinmeyer and David Clark, Members of the Firm in the Employment, Labor & Workforce Management practice.

Perhaps we were wrong. Or perhaps we were just not thinking creatively enough. After President Biden issued his “Executive Order on Promoting Competition in the American Economy,” in which he “encourage[d]” the Federal Trade Commission (FTC) to “consider” exercising its statutory rulemaking authority “to curtail the unfair use of non-compete clauses and other clauses or agreements that may unfairly limit worker mobility,” we assumed that Lina Khan, the 33-year-old Biden-appointed Chair of the FTC (and a vocal opponent of noncompetes), would take the torch and propose a Rule prohibiting, or at the very least severely limiting, the use of noncompetes. And she may still do so.