Restrictions on Noncompetes: Recent FTC Developments on Wage and Hour Workers
Course Details
- smart_display Format
On-Demand
- signal_cellular_alt Difficulty Level
- work Practice Area
Employment and Workers Comp
- event Date
Wednesday, October 26, 2022
- schedule Time
1:00 p.m. ET./10:00 a.m. PT
- timer Program Length
90 minutes
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This 90-minute webinar is eligible in most states for 1.5 CLE credits.
This CLE course will advise employment counsel on the executive order that President Biden signed regarding noncompete agreements. The panel will discuss recent FTC developments and the state law trend of disfavoring restrictions on employee mobility, such as noncompete agreements.
Mr. Beck is a business, trade secrets, and employee mobility litigator, nationally recognized for his trade secrets and noncompete experience. A leading authority on the law of trade secrets, noncompetes, and employee mobility, he literally wrote the law, wrote the book, and teaches the course on noncompete law in Massachusetts. Similarly, Mr. Beck revised the Massachusetts Uniform Trade Secrets Act, wrote the books Trade Secrets Law for the Massachusetts Practitioner (1st ed. MCLE 2019) and Negotiating, Drafting, and Enforcing Noncompetition Agreements and Related Restrictive Covenants (6th ed., MCLE, Inc. 2021), teaches the course Trade Secrets and Restrictive Covenants at Boston University School of Law, and co-hosts a podcast on trade secrets and restrictive covenants called Fairly Competing.
Mr. Bindra focuses his practice on employment and executive agreements, noncompete, non-solicit and trade secret disputes, business consulting, executive career counseling, appeals, whistleblower claims, employment arbitration agreements, unpaid wages, and employment discrimination. He has extensive experience working with executives physicians, and corporations. Mr. Bindra was also one of the lead architects and drafters of an amendment to the Illinois Freedom to Work Act that significantly reformed how noncompete and non-solicit agreements are litigated in the state of Illinois. He testified in support of the law and helped bring together a bipartisan coalition of support. As a result, the amendment passed with unanimous support in the Illinois legislature in 2021.
Mr. Chun is a seasoned litigator with experience handling a wide range of complex commercial, restrictive covenant, trade secret, and real estate litigation matters. His clients include private equity and hedge funds, startups, C-suite executives, technology and healthcare companies, insurance companies and brokers, and other corporate clients. Mr Chun has extensive experience counseling and litigating issues related to employee mobility and protecting trade secrets, including breach of restrictive covenants, corporate raiding, and clawback claims. He litigates misappropriation and non-compete cases on behalf of both employers and executives.
On July 9, 2021, President Biden signed the sweeping Executive Order on Promoting Competition in the American Economy, which, among other initiatives, "encouraged" the FTC to use its statutory rulemaking authority "to curtail the unfair use of non-compete clauses and other clauses or agreements that may unfairly limit worker mobility." While efforts to curtail the use of noncompetes are not new, this latest executive action could signal increased momentum towards nationwide restrictions banning or restricting the use of noncompetes for workers in a wide range of industries.
The White House's explanatory fact sheet clarifies that "the President encourages the FTC to ban or limit non-compete agreements." A nationwide rule regarding noncompetes would be an unprecedented move by the federal government.
Previously, the states regulated noncompete agreements. Many--including Illinois, Nevada, and Oregon--have passed legislation limiting the enforcement of noncompetes by setting minimum compensation levels and time limits on the period of restriction. The Executive Order and accompanying fact sheet do not offer details on whether these are the types of limitations the FTC should consider.
Still, they represent common compromises that are short of an outright ban on noncompetes. In addition to President Biden's Executive Order, the Illinois legislature passed new noncompete legislation in late May 2021. The new law will have significant changes for agreements and litigation in Illinois.
Although the FTC's administrative rulemaking process regarding noncompete agreements has not yet been initiated, employers should immediately consider reviewing their workers' noncompete agreements and employment policies for compliance with state law and with consideration of future possible federal action limiting the enforceability of such agreements.
Listen as our expert panel guides employment counsel on state and federal law related to noncompete enforcement as the rules evolve. What steps should counsel advise employers seeking to protect their businesses now?
- History of noncompete regulation
- Biden Executive Order
- FTC possible regulations
- Future of noncompete beyond low-wage workers
- Best practices for employers in the future seeking to limit unfair competition and protect their businesses
The panel will review these and other critical issues:
- What does the Promoting Competition in the American Economy Executive Order accomplish?
- What has the FTC stated or implied regarding any future possible rulemaking?
- How have states handled restrictions on noncompetes?
- How can counsel best address the potential limitations on using noncompetes when developing employment policies in the future
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