Trade Secrets & Employee Mobility

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. 

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

The inevitable disclosure doctrine, expected to be a widely used tool to protect trade secrets after the famous PepsiCo, Inc. v. Redmond case in 1995, has not been as commonly employed as anticipated. But is the legal landscape about to change?

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:

The 2023 Academy Awards are over, but we’re keeping the awards season alive with our very own Trade Secrets Fail Awards, highlighting Hollywood’s biggest missteps in depicting trade secret issues on-screen.

Panelists Peter A. Steinmeyer, Katherine G. Rigby, A. Millie Warner, and Daniel R. Levy discuss their picks for the worst trade secret theft and misappropriation in the movies and on television.

On February 21, 2023, the National Labor Relations Board (“NLRB” or “Board”) continued its aggressive application of the National Labor Relations Act (“Act” or “NLRA”) to workplaces without union representation and lessened the value of severance agreements for all employers by finding it unlawful for an employer to merely proffer a severance agreement that includes broad non-disparagement and confidentiality provisions to an employee. In McLaren Macomb, the Board held that a severance agreement that contains a confidentiality clause and a non-disparagement clause was unlawful because, in the Board’s view, these provisions impermissibly infringe on employees’ rights under the Act. Specifically, the Board found that these two provisions limit employees’ ability to discuss their wages, hours, and working conditions (which could include disparaging remarks) with other employees, prevent employees from assisting other employees seeking assistance, and hinder employees themselves from seeking assistance from the NLRB, unions, and other outside organizations.

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

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.