Trade Secrets & Employee Mobility

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.

* * *

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 ...