On July 9, 2021, President Biden signed an “Government Order on Selling Competitors within the American Economic system” (EO 14036).[1] The EO units forth various priorities and initiatives of the Biden administration aimed toward defending competitors in gentle of the market consolidation that has taken maintain in lots of segments of the American economic system over the previous a number of a long time, together with in well being care markets. Specifically, the EO takes goal at corporations requiring employees to signal non-compete agreements and encourages the FTC to restrict the usage of sure non-competes. Particularly, Part 5(g) of the EO states:

To deal with agreements which will unduly restrict employees’ capacity to vary jobs, the Chair of the FTC is inspired to contemplate working with the remainder of the Fee to train the FTC’s statutory rulemaking authority underneath the Federal Commerce Fee Act to curtail the unfair use of non-compete clauses and different clauses or agreements which will unfairly restrict employee mobility.

The EO follows Biden’s December 2020 announcement that he plans to “work with Congress to eradicate all non-compete agreements, besides the only a few which are completely essential to guard a narrowly outlined class of commerce secrets and techniques, and outright ban all no-poaching agreements.”[2] Nevertheless, the EO issued in July doesn’t have binding impact or require any explicit company motion with respect to non-competes, as an alternative solely “encourag[ing]” the FTC to take motion to curtail the unfair use of non-competes or different clauses unfairly limiting employee mobility. Though the EO has no quick authorized impact on the usage of non-competes, the EO’s directive to the FTC to think about an administrative rulemaking on the difficulty is one more sign in a latest development pointing to elevated curiosity on the federal stage to restrict the usage of non-competes within the office. 

It is usually potential that the EO finds a receptive viewers on the FTC. Over the previous few years, a number of FTC commissioners have made public—and demanding—statements on the usage of non-competes within the office. As an illustration, in January of final yr, the FTC organized a workshop to deal with non-compete clauses within the office for the categorical goal of figuring out whether or not the FTC ought to use its rulemaking authority to manage their use.[3] A bipartisan group of U.S. Senators submitted public remark in response to the announcement, calling on the FTC to take motion to restrict the usage of non-competes. [4] Then-acting FTC commissioner Rebecca Slaughter’s ready remarks for the workshop instantly addressed the impression of non-competes on doctor practices, elevating the query of whether or not imposing non-competes on physicians by an employer hospital means the hospital’s “enterprise curiosity is being promoted on the expense of sufferers.”  [5] Previous to the FTC’s non-compete workshop, Rohit Chopra and Lina Khan, FTC commissioner and now-current FTC chair, respectively, offered a important view of non-compete clauses in a 2019 legislation assessment article, implying that non-compete clauses in employment contracts could also be “ripe for rulemaking.” [6] Regardless of these publicly expressed views, no definitive motion is formally into account by the FTC to limit the usage of non-competes at the moment. 

Moreover, there have been a number of latest makes an attempt to restrict the usage of non-competes within the office by means of federal laws. As an illustration, the U.S. Senate is presently contemplating the Workforce Mobility Act of 2021 (WMA), S. 483, [7] following earlier variations of the invoice launched in 2018 and 2019.[8] The WMA is a bipartisan-sponsored Senate invoice which might severely prohibit the usage of non-competes on the whole, place enforcement duty with the FTC and Division of Labor (together with potential civil fines as much as $5,000 per week for a reported violation), and supply for a personal reason behind motion.[9] Part 3 of the WMA broadly prohibits any particular person from getting into into, imposing, or threatening to implement a non-compete settlement “with any particular person who performs work for the particular person and who in any workweek is engaged in commerce or within the manufacturing of products for commerce (or is employed in an enterprise engaged in commerce or within the manufacturing of products for commerce),” topic to a number of exceptions.  Exceptions are restricted to sure non-competes agreed to as a part of the sale of goodwill of a enterprise, sale of possession curiosity in a enterprise, or partnership dissolution or disassociation. Moreover, Part 4 of the WMA explicitly carves out agreements between employers and people to ban the sharing of the employer’s “commerce secrets and techniques,” as outlined at 18 U.S.C. § 1839, both throughout or after employment. A comparable invoice by the identical identify was additionally launched earlier this yr within the U.S. Home of Representatives with bipartisan cosponsors as H.R. 1367. [10] On condition that the WMA was beforehand circulated in Congress in prior years—and the shortage of motion because the WMA’s re-introduction in February—it’s unclear whether or not the present iteration of the WMA has a considerable probability of passage. 

Nevertheless, given previous public statements by FTC commissioners important of non-compete clauses in employment agreements, new stress from the Biden administration, and the potential for Congressional motion, there’s a minimum of some threat within the coming years of federal motion to restrict the usage of non-competes within the office.

Kevin Kifer is an affiliate in Thompson Coburn’s Well being Regulation Apply Group.

[1] https://www.whitehouse.gov/briefing-room/presidential-actions/2021/07/09/executive-order-on-promoting-competition-in-the-american-economy/

[2] https://joebiden.com/empowerworkers/

[3] https://perma.cc/8ERZ-7HNZ.

[4] https://www.murphy.senate.gov/imo/media/doc/FTCpercent20non-competespercent20letterpercent201.8.2020.pdf

[5] Rebecca Slaughter, Remarks on the FTC Workshop on Non-Compete Clauses within the Office, “New Decade, New Resolve to Defend and Promote Aggressive Markets for Employees” (Jan. 9, 2020), https://www.ftc.gov/system/recordsdata/paperwork/public_statements/1561475/slaughter_-_noncompete_clauses_workshop_remarks_1-9-20.pdf  

[6] Rohit Chopra & Lina M. Khan, The Case for “Unfair Strategies of Competitors” Rulemaking, 87 U. Chi. L. Rev. 357, 373 (2020), https://www.ftc.gov/system/recordsdata/paperwork/public_statements/1568663/rohit_chopra_and_lina_m_khan_the_case_for_unfair_methods_of_competition_rulemaking.pdf

[7] https://www.congress.gov/117/payments/s483/BILLS-117s483is.pdf

[8] https://www.congress.gov/115/payments/s2782/BILLS-115s2782is.pdf; https://www.congress.gov/116/payments/s2614/BILLS-116s2614is.pdf

[9] https://www.murphy.senate.gov/newsroom/press-releases/murphy-young-reintroduce-bill-to-protect-american-workers-limit-non-compete-agreements; https://www.congress.gov/117/payments/s483/BILLS-117s483is.pdf

[10] https://www.congress.gov/117/payments/hr1367/BILLS-117hr1367ih.pdf