Trade Secrets & Employee Mobility

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 ...