Non-compete | Fraser Blog

FTC Issues Final Rule Banning Non-Compete Agreements Nationwide

On April 23, 2024, in a 3-2 vote, the Federal Trade Commission (FTC) issued a final rule banning non-compete clauses in most employment agreements nationwide. The rule is scheduled to go into effect 120 days after it is published in the Federal Register. The FTC’s vote on the final rule comes over a year after it published a proposed rule on January 5, 2023.

Under the final rule, “Non-compete clause” is defined as “a term or condition of employment that prohibits a worker from, penalizes a worker for, or functions to prevent a worker from: (i) seeking or accepting work in the United States with a different person where such work would begin after the conclusion of the employment that includes the term or condition; or (ii) operating a business in the United States after the conclusion of the employment that includes the term or condition.”

The final rule covers all entities subject to the FTC Act (generally, most for-profit entities, but not non-profit organizations).

Some of the key elements of the final rule include:

- Starting from the effective date, the ban prohibits all new post-employment non-compete agreements between employers and employees across all industries and worker types, including both senior executives and lower-level employees. It does not apply to agreements prohibiting an employee from competing against an employer while employed.
- Post-employment non-compete agreements that are already in place may continue to be enforced, but only for senior executives. The definition of a senior executive is generally an employee who holds a policy-making position and earns an annual salary exceeding $151,164.
  - Policy-making position is defined in part as “a business entity’s president, chief executive officer or the equivalent, any other officer of a business entity who has policy-making authority, or any other natural person who has policy-making authority for the business entity similar to an officer with policy-making authority.”
- While employers are not obligated to formally rescind existing non-compete agreements, they are required to notify employees that post-employment non-compete agreements are no longer enforceable.
- The ban makes an exception for non-compete agreements related to the sale of a business, regardless of the ownership percentage involved in the transaction.
- The ban does not apply to contracts between franchisees and franchisors. However, it does apply to employees working for either a franchisee or a franchisor.

While the rulemaking may be a new step for the FTC, its purpose is in step with the Agency’s recent decisions; an example of which was included in the press release announcing the proposed rule, “This [rulemaking] aligns with the FTC’s recent statement to reinvigorate Section 5 of the FTC Act, which bans unfair methods of competition. The FTC recently used its Section 5 authority to ban companies from imposing onerous noncompetes on their workers. In one complaint, the FTC took action against a Michigan-based security guard company and its key executives for using coercive noncompetes on low-wage employees.”

We anticipate that a number of legal challenges to the FTC’s authority to ban non-compete agreements will be mounted. The US Chamber of Commerce already announced that it will be filing a lawsuit. We will continue to keep you informed of new developments.

This alert serves as a general summary and does not constitute legal guidance. Please contact us with any specific questions.

Robert D. Burgee is an attorney at Fraser Trebilcock with over a decade of experience counseling clients with a focus on corporate structures and compliance, licensing, contracts, regulatory compliance, mergers and acquisitions, and a host of other matters related to the operation of small and medium-sized businesses and non-profits. You can reach him at 517.377.0848 or at bburgee@fraserlawfirm.com.

Fraser Trebilcock Shareholder Dave Houston has over 40 years of experience representing employers in planning, counseling, and litigating virtually all employment claims and disputes including labor relations (NLRB and MERC), wage and overtime, and employment discrimination, and negotiation of union contracts. He has authored numerous publications regarding employment issues. You can reach him at 517.377.0855 or dhouston@fraserlawfirm.com.

Andrew G. Martin is an experienced registered patent attorney with history working in the automotive, electrical, and agricultural industries. He regularly advises startups and small businesses on the patent and trademark prosecution process, assisting clients from start to finish. You can reach him at 517.377.0834 or at amartin@fraserlawfirm.com.

FTC Proposes Rules Banning Non-Compete Agreements for Workers

On January 5, 2023, the Federal Trade Commission (FTC) published a proposed rule that would effectively ban the use of non-compete clauses in most employment agreements. The FTC’s guidance in proposing the rule says that 1-in-5 American workers are bound by some form of non-compete clause or agreement.

While the rulemaking may be a new step for the FTC, its purpose is in step with the Agency’s recent decisions; an example of which is included in the press release announcing the rulemaking, “This [rulemaking] aligns with the FTC’s recent statement to reinvigorate Section 5 of the FTC Act, which bans unfair methods of competition. The FTC recently used its Section 5 authority to ban companies from imposing onerous noncompetes on their workers. In one complaint, the FTC took action against a Michigan-based security guard company and its key executives for using coercive noncompetes on low-wage employees.”

These regulations (if adopted) will have wide-ranging impacts across many sectors of the economy. Employers should keep a close eye on these rules and be prepared to amend or revise their employment agreements accordingly. The attorneys at Fraser Trebilcock will continue to monitor this situation and provide updates as the rulemaking process unfolds.

This alert serves as a general summary and does not constitute legal guidance. Please contact us with any specific questions.

Biden Executive Order To Examine Non-Compete Agreements

On July 9, 2021, President Biden issued an executive order aimed at “promoting competition in the American economy.” A press release that preceded the issuance of the executive order stated the White House’s intention to “[m]ake it easier to change jobs and help raise wages” by removing barriers that “impede economic mobility,” including banning or limiting non-compete agreements.

In the days since the executive order was issued, we have heard from a number of clients who are, understandably, uncertain about the status of their current non-compete agreements. In short, the executive order has no immediate effect on existing non-compete agreements. And nothing in the executive order legally prevents an employer from entering into a new agreement with an employee, provided no other law or regulation prohibits it. Non-compete agreements are not limited or banned under federal law—at least not yet.

However, the issuance of the executive order, plus actions being taken by many state legislatures, suggests that there is significant momentum building to take some form(s) of action against non-compete agreements, and employers should pay careful attention to ongoing developments in this area.

The Law of Employment Contracts

As a general proposition, contract law generally, and employment contract law specifically, is left to the states and, except where federal policy concerns exist – for example, regulation of union-management relations with implications for the national economy. So, for starters, this presidential direction to an administrative branch regulatory agency is an attempt to expand the reach of federal governance.

The Impact of the Executive Order

Section 5(g) of the executive order directs the Federal Trade Commission (“FTC”), in conjunction with other federal agencies, to “address agreements that may unduly limit workers’ ability to change jobs.” It also urges the FTC Chairperson to “consider working with the rest of the Commission to exercise the FTC’s statutory rulemaking authority under the Federal Trade Commission Act to curtail the unfair use of non-compete and other clauses or agreements.”

Accordingly, in plain terms, the effect of the order is to start a process whereby the FTC will pursue a rulemaking process that would ban or limit the use of noncompete agreements as a matter of federal law. It is unclear how broad or narrow the rulemaking will be until actual proposed rules are presented.

Also, there is significant uncertainty as to whether the FTC has authority to regulate non-compete agreements. Such an action would almost certainly call into question whether the executive branch was encroaching congressional lawmaking power, and/or unconstitutionally infringing on the rights of states to make laws governing contracts.

Possible Secondary Effects

Beyond the more straightforward and intended result of a possible ban, second-order effects may arise which, presumably, would be considered by the FTC in the rulemaking process. For instance, tax-exempt employers, such as hospitals, insurance companies, and universities, sometimes rely on non-compete agreements to establish a “substantial risk of forfeiture” under Internal Revenue Code § 457(f) to delay immediate taxation of deferred compensation amounts. While the 457(f) negative tax consequences would primarily fall on the shoulders of the executive, this could also affect the timing of the inclusion of the income for purposes of the 21% excise tax on excess executive remuneration paid by such employers under Code § 4960, which is payable by the employer.

The Tea Leaves

We believe that if any regulation is attempted, it will be months or years in coming. We also believe that in the event regulation is initiated, it is likely to be directed at lower-compensated work and situations where workers do not possess proprietary skills or confidential information learned or obtained at the workplace.

We have counselled that non-compete agreements used by our clients should be well-founded in protecting the legitimate competitive interest of the enterprise, and should be limited to circumstances where that interest is present and properly described in the agreement or covenant. This advice remains pertinent, and review of those policies may be considered.

We will continue to keep you informed of relevant developments. If you have any questions, please contact Dave Houston or your Fraser Trebilcock attorney.

This alert serves as a general summary, and does not constitute legal guidance. All statements made in this article should be verified by counsel retained specifically for that purpose. Please contact us with any specific questions.

Lesson for Employers, as Tech Workers Sue Over Silicon Valley Anti-Poaching Pacts

Employers are sometimes tempted to enter into agreements with each other under the terms of which they agree not to recruit or hire each other’s employees. The U.S. Department of Justice takes the position that such agreements can be per se violations of the antitrust laws.

Continue reading Lesson for Employers, as Tech Workers Sue Over Silicon Valley Anti-Poaching Pacts