FTC Proposes Rule Banning Noncompete Agreements

On January 5, 2023, the Federal Commerce Fee (FTC) issued a proposed rule that might prohibit employers from utilizing noncompete agreements with their workers or impartial contractors. This proposal arises from a preliminary discovering by the FTC that noncompetes represent an unfair technique of competitors in violation of Part 5 of the Federal Commerce Fee Act (FTC Act). It comes on the heels of the FTC’s November policy statement asserting its intention to carefully implement and develop the scope of Part 5 of the FTC Act’s ban on unfair strategies of competitors.

If adopted, this rule would make it unlawful for an employer to enter right into a noncompete settlement with a employee, keep a noncompete with a employee or symbolize to a employee that the employee is topic to a noncompete. Employers would even be required to rescind present noncompetes and inform employees that they’re now not enforceable.

The proposed rule would apply to noncompetes with both workers or impartial contractors. Different restrictive covenants reminiscent of non-disclosure agreements wouldn’t be affected by the FTC’s proposed rule until they’re so broad in scope that they primarily operate as a noncompete settlement.

The FTC is inviting public touch upon its proposed rule. The complete textual content of the proposed rule and data on the general public remark interval is on the market here. Particularly, the FTC seeks touch upon whether or not senior executives or franchisees needs to be coated by the rule, in addition to whether or not low- and high-wage employees needs to be handled in a different way underneath the rule. Feedback are due 60 days after the Federal Register publishes this proposed rule, after which the FTC is prone to challenge a last rule. Ought to the rule turn into last, corporations needs to be ready for it to enter impact 180 days after the date of publication.

The proposed rule arrives with the FTC’s concurrent announcement of settlements in complaints it issued in opposition to three employers’ use of noncompetes. These settlements ban these employers from imposing, threatening to implement or imposing noncompetes in opposition to specified teams of workers and require that the businesses notify all affected workers.

Traditionally, noncompetes have been a matter of state regulation. With this new involvement from the FTC trying to set a nationwide ban on noncompetes, employers want to concentrate on this newest try to control using noncompete agreements and restrictive covenants.

Whether or not the FTC will succeed stays an open query. Republican Commissioner Christine S. Wilson, in a dissenting statement, cautioned that the proposed rule is open to meritorious challenges that (1) the Fee lacks authority to interact in “unfair strategies of competitors” rulemaking and (2) the Supreme Courtroom of the US’ “main questions” doctrine means that the federal courts could preclude the FTC from venturing into this novel space of regulation absent legislative amendments to its enabling statute. Plus, events could persuade the FTC to reduce its proposed regulation.

Entities curious about submitting such feedback can acquire additional steering and drafting help from both Paul Hughes, Brian Mead or a member of the Agency’s antitrust group.