Article · Employment Law

The Future of Non-Competes: FTC Rulemaking and the State-Law Patchwork

Type
Article
Jurisdiction
National
Date
2024-08-10
Topic
Employment Law

The Federal Trade Commission's bid to void non-compete agreements nationwide collapsed—vacated in Ryan, LLC v. FTC in August 2024 and later abandoned by the Commission itself—but the pressure on restrictive covenants has kept building from statehouses and courts. This article reconstructs the FTC rule from executive order to vacatur, dissecting the Section 5 and Section 6(g) authority question and the major-questions problem that undid it, then charts the fifty-state mosaic of outright bans, wage thresholds, notice rules, and physician-specific prohibitions that now governs employers. It works through the common-law reasonableness test, the blue-pencil spectrum that decides whether an overbroad covenant is trimmed or killed, and the consideration traps that void agreements employers assume are ironclad. It then details the alternatives that survive the new scrutiny—garden leave, forfeiture-for-competition clauses, tightly drawn non-solicitation and confidentiality agreements, and the Defend Trade Secrets Act—following a hypothetical robotics company as it rebuilds its entire protection program. The through-line is simple: the non-compete is losing ground, but the interests it guarded remain, and the tools for guarding them have grown more sophisticated than the restraint they replace.

The Future of Non-Competes: FTC Rulemaking and the State-Law Patchwork

Employment Law > Restrictive Covenants | Published 10 August 2024 - Updated 13 September 2024 | UpLaw - uplaw.us

A field guide to a doctrine in motion: why the FTC's nationwide non-compete ban never took effect, how fifty state regimes now fill the vacuum, and what a defensible protection program looks like once you stop relying on a single restraint.

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