Non-Compete

As we previously reported, here, the Federal Trade Commission (FTC) voted to issue a final rule (the “Rule”) that would prevent most employers from enforcing noncompete agreements against workers, with only limited exceptions for existing noncompetes with senior executives and noncompetes made in connection with the bona fide sale of a business.… Continue Reading

The Federal Trade Commission (FTC) voted yesterday to issue a final rule that will prevent most employers from enforcing noncompete agreements against workers, with only limited exceptions for existing noncompetes with senior executives and noncompetes made in connection with the bona fide sale of a business. Employers must review existing and prospective employment agreements and revise them to comply with the new rule, which, unless enjoined by a court, will go into effect 120 days after publication in the Federal Register, expected in the coming days.… Continue Reading

On March 21, 2024, the Federal Deposit Insurance Corporation (“FDIC”) issued its proposed Statement of Policy on Bank Merger Transactions (the “Proposal”) for public comment. The Proposal seeks to update guidance, last amended in 2008, on how it will evaluate bank merger transactions with respect to competition, financial resources, the convenience and needs of communities, financial stability, and money laundering.… Continue Reading

Non-compete agreements and other restrictive covenants have drawn intense scrutiny from the federal government, as well as in several states, causing businesses to consider the enforceability of their agreements and how to protect their businesses. Jay Zweig recently sat down with Matt Crossman of the AccelPro Employment Law podcast to discuss the keys to effectively drafting and enforcing these agreements.… Continue Reading

The Federal Trade Commission (FTC) and the National Labor Relations Board (NLRB) recently announced a Memorandum of Understanding (MOU) resolving to enhance the enforcement of federal laws and regulations administered by these agencies, and to promote interagency collaboration through information sharing, cross-agency training, and coordinated outreach.  The stated goal is to “better root out practices that harm workers in the ‘gig economy’ and other labor markets.” … Continue Reading

In May 2022, Colorado legislators passed a law that bans employee non-compete clauses for workers making less than six figures annually.  Governor Jared Polis (D) signed the bill into law on June 8, 2022, giving it an effective date of August 10, 2022.

In short, HB 22-1317, imposes an income-based minimum on enforceable non-compete agreements between employers and employees. … Continue Reading

The United States indicted DaVita, Inc., and Kent Thiry, DaVita’s former Chief Executive Officer, last year alleging that they had violated Section 1 of the Sherman Act by engaging in “Conspiracy in Restraint of Trade to Allocate Employees.” The essential elements of the criminal charges were alleged agreements with competitors not to poach each other’s employees.… Continue Reading

On July 9, 2021, the White House issued an executive order (“EO”) with the stated objective of countering anti-competitive forces throughout the economy.  One specific directive is the limitation of non-compete agreements, which include not only restrictive covenants, but also “other clauses or agreements that may unfairly limit worker mobility.”  Potentially, this could include customer and employee non-solicitation provisions, which some courts construe in the same manner as employee restrictive covenants. … Continue Reading

The latest episode of Business Better is a discussion of “no-poach” agreements – agreements between competitors that neither will hire the other’s employees. We’ll discuss the different types of such agreements, their enforceability under antitrust and other laws and the possibility of criminal prosecution arising from their use, and how to protect a business from poaching without running afoul of the law.… Continue Reading