FTC Puts the Kaibosh on Non-Competes

Lina Khan, FTC Chair

The Federal Trade Commission (FTC) has proposed a new rule limiting what it calls unfair methods of competition.  The rule, after some definitional mumbo-jumbo, is pretty straightforward and incredibly sweeping.  First the proposed rule provides:

(a) Unfair methods of competition. It is an unfair method of competition for an employer to enter into or attempt to enter into a non-compete clause with a worker; maintain with a worker a non-compete clause; or represent to a worker that the worker is subject to a non-compete clause where the employer has no good faith basis to believe that the worker is subject to an enforceable non-compete clause.

Boom!

But wait, you say.  What about all currently existing non-competes?  The FTC is not done yet:

(b) Existing non-compete clauses.

(1) Rescission requirement. To comply with paragraph (a) of this section, which states that it is an unfair method of competition for an employer to maintain with a worker a non-compete clause, an employer that entered into a non-compete clause with a worker prior to the compliance date must rescind the non-compete clause no later than the compliance date.

Boom!

The rest is notice requirements and narrow exceptions.  Employers would have 180 days from the effective date of the proposed rule to comply with the rescission requirement.

According to the FTC, non-competes suppress wages.  The FTC estimates that its proposed rule would increase workers’ earnings between $250 billion and $296 billion per year.

BOOOM!

Expect legal challenges.  Expect them to invoke the Supreme Court's recent invention, the major questions doctrine.