As our antitrust colleagues defined lately, on August 26, 2022, the Federal Commerce Fee (FTC) printed its “Strategic Plan for Fiscal Years 2022–2026,” as required underneath the GPRA Modernization Act of 2010. Readers of this weblog can be inquisitive about two small, however necessary, objects within the Strategic Plan associated to noncompete agreements.
First, underneath “Goal 2.1: Determine, examine, and take actions towards anticompetitive mergers and enterprise practices,” the FTC opinions that “[a]anticompetitive mergers and enterprise practices hurt People by way of larger costs, decrease wages, or diminished high quality, alternative, and innovation. Enforcement of antitrust legal guidelines offers substantial advantages to the general public by serving to to make sure that markets are open and aggressive.” It then identifies sure “[s]methods” that the FTC intends to pursue over the following 5 years, together with “[i]creas[ing] use of provisions to enhance employee mobility together with proscribing using non-compete provisions.” It is unclear precisely what provisions it intends to extend its use of, however however the FTC can be centered on the difficulty.
Later, underneath “Goal 2.2: Have interaction in analysis, advocacy, and outreach to advertise public consciousness and understanding of honest competitors and its advantages,” the FTC identifies, as one other technique it intends to pursue, “[f]ocus[ing] on staff: Examine and examine the influence on employee wages and advantages from merger and nonmerger conduct, in addition to non-compete and different probably unfair contractual phrases ensuing from energy asymmetries between staff and employers.” The FTC has been “learning” this concern for a number of years now, having held just a few public workshops, however apparently it intends to proceed its research of the difficulty.
There may be frankly not a lot new in these statements, and what’s most fascinating (though not essentially most telling) could also be that these “methods” are watered down considerably from FTC Chairwoman Lina Kahn’s acknowledged need to make use of the FTC’s rulemaking authority to ban noncompetes ( though extra in step with President Biden’s July 9, 2021 Government Order during which he “encourage[d]” the FTC to “contemplate” exercising its statutory rulemaking authority “to curtail the unfair use of non-compete clauses and different clauses or agreements which will unfairly restrict employee mobility”).
As we have now beforehand written in Law360it’s questionable whether or not the FTC even has the authority to control, a lot much less prohibit, noncompetes, significantly following the Supreme Court docket’s resolution in West Virginia v. Environmental Safety Company, during which the Court docket additional elucidated on the “Main Questions Doctrine.” However, regardless of that call, and regardless of the FTC’s seemingly watered-down strategy to noncompetes in its 5-year Strategic Plan, it might not come as a shock if the FTC issued proposed guidelines limiting, if not outright prohibiting, noncompete agreements nationwide. Certainly, as we beforehand reported in July, the FTC entered right into a Memorandum of Understanding with the Nationwide Labor Relations Board (NLRB) asserting their “continued and enhanced coordination and cooperation regarding problems with frequent regulatory curiosity,” which they recommend “will assist to guard staff towards unfair strategies of competitors, unfair or misleading acts or practices, and unfair labor practices.” The FTC and NLRB expressly recognized as an “[i]ssue of frequent regulatory curiosity. . . the imposition of one-sided and restrictive contract provisions, comparable to noncompete and nondisclosure provisions.”
We are going to proceed to observe the FTC’s feedback and actions concerning noncompetes and report again with any materials updates.