This January, the Federal Trade Commission announced a new proposed rule that would ban noncompete agreements across the country. According to the FTC, noncompete agreements constitute an unfair method of competition, therefore violating Section 5 of the Federal Trade Commission Act.
Naturally, employers are left with a lot of questions about how they should move forward. What would this rule mean for you in the future? It’s important to note that the text of this rule is not final, so a lot could change over the course of the consideration period. However, if you’re looking to be prepared for what’s to come, here’s what you need to know:
The FTC’s proposed rule would generally prohibit employers from using noncompete clauses. Specifically, it would make it illegal for employers to:
This rule would also apply to independent contractors. Plus, it would require employers to rescind existing noncompetes and actively inform workers they are no longer in effect. You can read the full text of the proposed rule here.
Currently, about one in five American workers has signed a noncompete agreement. Some might argue that noncompete agreements are only found at the executive level. However, they are still most commonly found among the middle-class. These agreements can have chilling effects, including:
If the ban goes into effect, employers would likely be required to follow the rules set in the final version of the FTC’s proposal. As of now, employers would be required to rescind all noncompetes, notify employees, and stop requiring them during the hiring process.
While this may sound challenging, employers will likely still be able to protect trade secrets or client lists through nonsolicitation agreements and confidentiality agreements.
Additionally, the FTC estimates that the elimination of noncompete clauses could generate new job opportunities for as many as 30 million workers and raise wages by $300 billion. For middle-class employees currently subjected to a noncompete, this could be life changing. And for employers struggling to hire, this could burst the talent pool wide open.
After the public comment period, the FTC will review and consider public comments before issuing a final draft of the rule, which would also announce when the rule would go into effect. However, this could also face legal challenges down the line.
Since nothing is official yet, you may be inclined to wait and see how this plays out. However, it’s important to note that the conversation is changing. The final shaping of the rule and whether it stands up in court will not change the fact that your employees will increasingly be put off by the idea of adhering to a noncompete agreement.
If you’re looking to secure top talent, there is more you can offer than a legal threat if they want to leave. Instead, take a look at your development and growth opportunities, compensation structures, and management practices. Turn your organization into a place they wouldn’t want to leave.
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