Written by Christie Del Rey-Cone and Eric Engelman

The Federal Trade Commission (“FTC”) issued a Notice of Proposed Rulemaking on January 5, 2023 that would prohibit employers from entering into, or enforcing, non-compete clauses with workers. The proposed rule would broadly cover all workers, regardless of whether the worker is an employee or independent contractor, or whether the worker is paid or unpaid. The FTC’s rule does not preempt state laws that provide greater protections to workers.

The proposed rule applies to all agreements an employer has with a worker, including employment contracts and separation agreements. With respect to existing agreements with workers, the rule would require employers to rescind all non-compete clauses within 180 days after the final rule is published, and provide a notice to current and former workers that the clause is rescinded. A non-compete clause is defined by the proposed rule to mean “a contractual term between an employer and a worker that prevents the worker from seeking or accepting employment with a person, or operating a business, after the conclusion of the worker’s employment with the employer.”

Additionally, the rule would create a functional test to determine whether other terms in an agreement with a worker are de facto non-compete clauses. The functional test evaluates whether the contractual clause has the effect of prohibiting the worker from seeking or accepting employment at the end of an employment relationship. Even though this functional test could apply to any contractual provision, the FTC identifies two examples of a de facto non-compete clause:

1. “A non-disclosure agreement between an employer and a worker that is written so broadly that it effectively precludes the worker from working in the same field after the conclusion of the worker’s employment with the employer.”
2. “A contractual term between an employer and a worker that requires the worker to pay the employer or a third-party entity for training costs if the worker’s employment terminates within a specified time period, where the required payment is not reasonably related to the costs the employer incurred for training the worker.”

The FTC’s rule does not prohibit employers from including non-disclosure terms in an agreement to protect sensitive information, but these terms would need to be carefully drafted to help ensure they are not interpreted as preventing a worker from seeking or accepting employment.

There is also a safe harbor for employers with respect to existing non-compete clauses. If an employer provides a rescission notice, the proposed rule states that employer will be in compliance with the rescission requirement.

The public can comment on the proposed rule through March 10, 2023 by using this link: https://www.regulations.gov/document/FTC-2023-0007-0001. After the comment period concludes, the FTC will consider the public’s comments in drafting a final version of the rule. Although the final rule goes into effect 180 days after publication, it is likely that the rule will face significant legal challenges.