Tag: FTC

FTC Non-Compete Ban Blocked

FTC’s Non-Compete Ban Blocked Nationwide

On August 20, 2024, the U.S. District Court for the Northern District of Texas enjoined the Federal Trade Commission’s (FTC) proposed non-compete ban. The decision, issued by U.S. District Court Judge Ada E. Brown, sets aside the FTC’s Non-Compete Rule.  So, the FTC cannot attempt to enforce the rule when it is scheduled to take effect on September 4, 2024.

The case is captioned as Ryan LLC (Plaintiff) and Chamber of Commerce of the United States of America, Business Roundtable, Texas Association of Business, and Longview Chamber of Commerce (Plaintiff-Intervenors) v. Federal Trade Commission, Civil Action No. 3:24-CV-00986-E.

Basis for Injunction

Judge Brown found two legal deficiencies in the promulgation of the FTC’s non-compete rule.

Exceeding Statutory Authority

The court found that the FTC exceeded its statutory authority under the Federal Trade Commission Act (FTC Act). The ruling emphasized that the FTC does not have the power to issue substantive rules that broadly prohibit non-compete agreements across all industries and employment levels. The FTC’s authority to prevent unfair methods of competition does not extend to the creation of sweeping, substantive regulations such as this Non-Compete Rule.

Arbitrary and Capricious Action

The court also determined that the FTC’s rule was arbitrary and capricious. The ruling criticized the FTC for imposing a one-size-fits-all ban on non-compete agreements without adequately considering less restrictive alternatives or providing a rational basis for the rule. Plus, the FTC’s reliance on certain studies was insufficient to justify such a broad prohibition. The judge noted that no state had enacted a rule as far-reaching as the FTC’s proposed regulation.

According to Judge Brown, “In sum, the Rule is based on inconsistent and flawed empirical evidence, fails to consider the positive benefits of non-compete agreements, and disregards the substantial body of evidence supporting these agreements.”

Status Quo Preserved

With the proposed non-compete ban blocked, employers may continue using non-competes to the extent allowed under applicable state law. Note that some states, such as California, already largely prohibit the enforcement of non-compete clauses.

While this ruling halts the FTC’s current efforts, it does not entirely close the door on federal regulation of non-competes. The FTC may attempt to appeal the decision (though the relevant appellate courts are not expected to reach a different conclusion). Alternatively, the FTC may revise its approach with a more limited non-compete ban. Some individual state legislatures will probably revisit potential non-compete bans as well.

 

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2024 New York Employment Law Update Cover Slide

2024 New York Employment Law Update (Webinar Recap)

On May 29, 2024, I presented a complimentary webinar entitled “2024 New York Employment Law Update”. For those who couldn’t attend the live webinar, I’m happy to make it available for you to watch at your convenience.

In the webinar, I discuss:

  • FTC Non-Compete Rule
  • FLSA Overtime Rule
  • New York Labor Law Amendments
  • NYS Freelance Isn’t Free Act

and much more!

Especially in New York, employers must remain constantly vigilant for new restrictions on how they treat their employees. Recent actions at the federal level also have potentially significant implications for New York employers. This webinar includes the latest information on new state laws and federal regulations that affect a wide array of New York workplaces.

Don’t have time to watch the whole webinar right now? Click here to download the slides from the webinar.

Why You Should Watch “2024 New York Employment Law Update”

Have you been waiting to find out what the FTC’s non-compete ban may mean for your business? Still not entirely sure whether the FLSA overtime rule change will affect you? Struggling (like many) to keep track of the latest requirements imposed on New York employers? (And the Freelance Isn’t Free Act even goes beyond employment to cover many independent contractor relationships.)

This webinar will catch you up on these developments and more. Did you know that all New York employers will soon have to provide paid break time to new mothers to express breastmilk at work? In 2025 there will also be a new paid prenatal leave available for pregnant employees. And, New York has finally gotten around to passing a law preventing employers from requiring applicants and employees to provide access to their social media accounts. Make sure you don’t miss out on the facts and tips related to these legal shifts. Now is the time to come into compliance or stay ahead of upcoming obligations.

Don’t Miss Our Future Webinars!

Click here to sign up for the Horton Management Law email newsletter to be among the first to know when registration is open for upcoming programs! Plus, follow us on LinkedIn for updates on important employment law issues.

Noncompete

FTC Attempts to End Noncompete Agreements

The Federal Trade Commission (FTC) has released its “final rule” banning noncompete agreements. This agency action marks a significant shift in the landscape of U.S. employment and competition law. This development, poised to reshape employer-employee dynamics and broader business practices, warrants close attention, especially given the potential legal battles and opposition it faces. If the rule takes effect in its current form, it will be a game-changer for numerous companies and will require immediate action by many.

The Rule and Its Rationale

For years, noncompete clauses have been standard in many industries, viewed as a means to protect businesses by restricting employees from joining competitors immediately after their tenure. However, under the new FTC rule, such agreements would be prohibited across all states, applying to employees, contractors, and some other workers. The FTC argues that noncompetes stifle wage growth, deter innovation, and limit job mobility, ultimately harming the economy. By eliminating these clauses, the FTC anticipates enhanced competition, increased entrepreneurship, and broader economic benefits, such as higher wages and lower healthcare costs.

Key Provisions of the Rule

  1. Effective Date: The rule is set to take effect on September 4, 2024, unless delayed by legal interventions.
  2. Exceptions: The rule permits some existing noncompetes for senior executives to remain in effect and allows them going forward in some scenarios involving the sale of a business.
  3. Scope of Restrictive Covenants: Other forms of restrictive covenants, like nonsolicitation and nondisclosure agreements, are not directly affected. The rule only restricts post-employment competition, meaning noncompetes that operate during employment are still permissible.

Employee Impact Notices

If the rule takes effect, all employers with existing noncompetes invalidated by the rule must notify affected workers that the noncompete will not be enforced. The FTC has even included a model notice for this purpose in the final rule.

Legal Landscape and Challenges

The FTC’s bold move has not gone unchallenged. Business entities, including prominent chambers of commerce and trade groups, argue that the FTC is overreaching its authority. Several lawsuits have already been filed, seeking to invalidate the rule on various grounds, which could delay or derail its implementation.

Compliance and Strategic Adjustments

Businesses need to proactively prepare for the potential enactment of this rule:

  • Tracking and Review: Employers should audit their current noncompete agreements and employment contracts to determine necessary revisions and notices.
  • Strategic Planning: Companies might need to recalibrate the terms of employment, particularly regarding compensation and other incentives, in response to the unenforceability of noncompetes.
  • Legal Consultation: Given the complexities and evolving nature of the rule, legal advice will be crucial in navigating compliance and leveraging permissible protective measures.

Enforcement and Penalties

The FTC will oversee the enforcement of this rule, treating violations as unfair competition practices subject to penalties. A good-faith defense is available for businesses that mistakenly, but reasonably, believe the rule does not apply to their actions. This defense may be limited to provisions that do not look like traditional noncompetes but are interpreted as having the same impermissible impact under the FTC rule.

Conclusion

As the legal battles unfold and the effective date approaches, businesses must stay informed and flexible, ready to adapt to a potentially transformed regulatory environment. The FTC’s noncompete ban could significantly alter how businesses operate and compete, making it essential for employers to rethink their strategies concerning workforce management and competitive practices.

 

A copy of the FTC noncompete rule, with accompanying information from the agency, is available here.

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