Tag Archives: noncompete

FTC Plan to Ban Noncompete Clauses Shifts Companies’ Focus

Businesses and lawyers are beginning to assess what the Federal Trade Commission’s proposed ban of noncompete clauses in employment contracts could mean for worker mobility, wages and the way future compensation agreements are structured. 

While a full or partial ban could expand the pool of potential hires, it also would weaken a tool that employers have come to rely on to retain talent and protect trade secrets and other proprietary information, lawyers say. More companies likely would turn to a patchwork of alternative mechanisms to keep people from leaving and taking valuable information with them, including nondisclosure agreements and employment contracts that reward longevity, they say. 

“Employers have operated with an understanding that they can protect their interests through noncompetes,” said Matthew Durham, a Salt Lake City-based attorney with Dorsey & Whitney LLP who advises companies on employment matters. “What you’re seeing, reflected in the FTC proposal and elsewhere, is a growing hostility to the idea that there should be those kinds of restrictions, and it’s changing the environment that employers have been comfortable with in the last number of years.”

The FTC proposed a ban this month on nearly all noncompetes, saying that the clauses—which typically prohibit workers from moving to a new employer or starting new ventures of their own—hamper competition in the labor market, suppress wages and hold back innovation and entrepreneurship. The proposal came in response to an executive order from President Biden in 2021.

Businesses say they impose noncompete clauses on employees to protect trade secrets and other confidential information, including customer lists and financial data.

The FTC contends that noncompete clauses discourage innovation and entrepreneurship.



Photo:

Eric Lee for The Wall Street Journal

Mr. Durham and others say they believe the FTC may narrow its rule after hearing comments from the public, including employers and business organizations that have already signaled their opposition to the current proposal. The agency could, for example, allow noncompetes for highly compensated workers.

Noncompetes are common in employment contracts for senior employees like software engineers, sales representatives and top executives. Over time, they have been applied to many parts of the U.S. workforce, including some janitors, baristas, schoolteachers and entry-level workers. According to the FTC, one in five U.S. workers is currently subject to a noncompete clause.

Noncompetes are regulated at the state level, and many states have already taken action to limit use of the clauses by, in some cases, forbidding employers from imposing them on people earning under a particular wage threshold or for certain types of workers. 

“The vast majority of people in America can’t afford a lawyer to defend a noncompete case,” said Jonathan Pollard, an attorney in Florida who represents workers whose employers are trying to enforce noncompete clauses. “Just the threat of enforcement is often enough to restrain talent in the labor market.”

The Federal Trade Commission proposed a new ban on noncompete clauses, which the agency says hurts workers and competition. Companies argue they protect trade secrets. WSJ breaks down what a federal ban could mean for workers and businesses. Photo illustration: Jacob Reynolds

Some states, such as California and Oklahoma, hold that the clauses are unenforceable in all or nearly all employment contracts. 

A number of studies suggest noncompetes suppress wages and innovation. A review of Oregon’s 2008 ban on noncompetes for hourly workers found that wages rose an average of 2% to 3%. Another study, examining Hawaii’s 2015 ban on noncompete agreements for high-tech workers, found an 11% increase in job moves and a 4% increase in new-hire salaries.

The clauses restrain not just pay and entrepreneurship, but also professional development, workers and some attorneys say. 

Daniel Bachhuber had worked as a software consultant for years when he decided to take an in-house job in the fall of 2018. His new employer required that he sign a one-year noncompete agreement, which he said was so broad it would have prevented him from practicing his core skills if he were to leave the company or be fired.

Mr. Bachhuber balked. Earlier in his career, he had been laid off a few weeks into a new job, just after his first child was born. If that happened at the new job, he recalled thinking, he would be unable to earn a living for a year. “I’m always thinking, worst case scenario, what kind of downstream protection do I have?” the 35-year-old said. “Even if I was employed just one day, I couldn’t go back to the same clients I had.”

Daniel Bachhuber turned down a job after an employer wouldn’t change a noncompete clause.



Photo:

Mason Trinca for The Wall Street Journal

He consulted a lawyer and tried to renegotiate the contract, hoping to salvage a role that would have expanded his skills and given him a chance to work directly with the chief technology officer on special projects. The company declined to change the noncompete clause and, reluctantly, Mr. Bachhuber turned down the position. 

Employers have other tools to protect information besides noncompete agreements, including nondisclosure agreements, trade secret laws and nonsolicitation agreements, which prohibit workers from poaching customers or employees of their prior firm. 

But those tools generally can only be used after an employee violates the agreement, said Julie Levinson Werner, who represents employers as a partner with law firm Lowenstein Sandler LLP. “Once someone goes to another company, you’re really on the honor system. You have no way to monitor what information is being disclosed or not,” she said.

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Observers on both sides say that limitations on the clauses will compel employers to get more creative about how they retain talent, using everything from compensation to career advancement to keep workers engaged and loyal to the company. Some companies use deferred compensation—such as retention bonuses or rolling stock options that vest after, say, three years—to give people incentives to stay.

“Do you get better results with honey or vinegar?” said Ms. Werner. “If you want to motivate people and have them happy to stay, you have to look at compensation, the overall environment, how you treat them.”

The fate of the FTC’s final rule is up in the air. After a 60-day comment period, the commissioners will consider potential changes to the initial proposal and then issue a final rule. That rule will likely be challenged by business groups or individual companies, and courts will determine its trajectory, attorneys say.

Write to Lauren Weber at Lauren.Weber@wsj.com

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Antitrust regulators propose banning noncompete clauses for workers

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The Federal Trade Commission proposed a rule Thursday to prohibit employers from imposing noncompete clauses on workers — a widespread practice that economists say suppresses pay, prevents new companies from forming and raises consumer prices.

The ban would make it illegal for companies to enter into noncompete contracts with employees or continue to maintain such contracts if they already exist, and it would require that companies with active noncompete clauses inform workers that they are void. Such agreements typically prevent workers from getting jobs at a competitor of a current or former employer for a defined period.

The FTC estimates that banning noncompete contracts would open new job opportunities for 30 million Americans and raise wages by $300 billion a year. If enacted, the rule could send shock waves across a wide range of industries.

One widely cited survey of economists from 2014 found that close to 20 percent of workers in the United States are bound to noncompete clauses across a variety of jobs, from hairstylists to software engineers to nurses. These contracts have forced workers to take on loads of debt during lengthy job searches, locked workers out of their own professions or shunted them into lower-paying industries.

The proposed rule, recommended by President Biden as part of a 2021 executive order, is the FTC’s first big shot at stretching the boundaries of antitrust enforcement to empower American workers.

FTC Chair Lina Khan, a Biden appointee who has promised to “use all of the tools in our toolbox” to rein in anticompetitive behavior from companies, said the rule is being proposed because of “a raft of economic evidence” that now shows “the ways that noncompete clauses undermine competition.”

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“Noncompetes are basically locking up workers, which means that they’re not able to match with the best jobs for them,” Khan said on a call with reporters Wednesday afternoon. “If this rule were to be finalized and go into effect … [it] would force employers to compete more vigorously over workers in ways that should lead to higher wages and improved working conditions, basically injecting competition into the labor market.”

The proposed rule is based on an initial finding that noncompete clauses violate Section 5 of the Federal Trade Commission Act, which prohibits “unfair” methods of competition. The FTC is seeking public comment on the proposed rule for 30 days, but it has not disclosed a timeline for its approval.

Under its current Democratic majority, the FTC voted 3-1 to publish a notice about the proposed rule, the first step in its rulemaking process.

The prospect of banning noncompete agreements has been met with some backlash from the business community. The U.S. Chamber of Commerce wrote in a letter to the FTC in 2021 that the agency “lacks legal authority” to enforce such a rule that “would harm consumers by banning the many pro-competitive aspects of noncompetes.”

A record tight labor market fueled by supply chain shortages and the coronavirus pandemic has forced many companies over the past year to raise wages and improve conditions, as workers have used their leverage to quit and change jobs, especially in low-wage industries, such as hospitality. But workers covered by noncompete clauses haven’t had the same power because the labor market in such jobs has been artificially constrained.

A growing body of research shows that noncompete contracts reduce wages and mobility for workers across various industries by ensuring that employers do not have to compete against one another for workers by raising wages or improving working conditions.

The use of noncompete clauses dates back hundreds of years. Such restrictions were originally meant to protect a business’s trade secrets, but they have become especially commonplace in employment contracts in recent years — for low-wage workers, white-collar workers and executives alike — allowing companies to benefit from less competition across the board.

The proposed rule would not apply to other types of employment restrictions, such as nondisclosure agreements, but those provisions could be subject to the FTC’s rule if the agency determines that they prevent workers from switching jobs. It would extend beyond employees to independent contractors and uncompensated workers, such as unpaid interns.

A few states have already banned noncompete contracts, including California, Oklahoma and North Dakota. Other states have banned such clauses for workers who earn below a certain income. Data shows that workers in these states with bans have seen larger wage increases and more job mobility than when noncompete clauses were legal. Some observers suggest that the rise of Silicon Valley in California as a global hub of tech innovation was helped along by the state’s unwillingness to enforce noncompete contracts.

Still, many employers continue to ask workers to sign noncompete contracts in states where the practice has been prohibited, in part because low-wage workers remain unaware of their rights. A challenge going forward may be enforcing these rules as the FTC grapples with its own limited resources.

After months of deadlock, Lina Khan is unleashed

Khan said she’s confident in the agency’s ability to make companies follow the rule if it is enacted.

“Companies right now might still be sneaking these into contracts, thinking, ‘Hey, these workers are unlikely to actually know what their legal rights are,’” Khan said. “All of that would be precluded by the fact that firms would actively have to inform the employees and give them clear notice.”

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