A tale of two approaches to noncompete agreements

Big news on noncompetes—from two very different directions.

First, the NLRB just quietly backed off its aggressive stance that most noncompetes violate federal labor law. The agency's Acting General Counsel rescinded 2023's memo that took that position, signaling a retreat from treating noncompetes as an unfair labor practice.

Meanwhile, Ohio lawmakers are headed in the opposite direction. Last month, they introduced SB 11, a bipartisan bill that would ban nearly all noncompetes in the state. If it passes, it'll be a game-changer, giving employees much more freedom to jump to competitors.

Use caution when poaching competing employees

Here are 25 million reasons to be careful when poaching your competitor's key employees.

In a recent federal case, medical device company Cynosure snagged a $25M jury verdict after its rival, Reveal Lasers, and two former sales managers were found to have violated noncompete, nonsolicitation, and nondisclosure agreements.

The result? A hefty price tag for raiding Cynosure's sales and marketing teams.

The FTC's noncompete ban is DOA

It was only a matter of time before a federal court blocked the FTC's noncompete rule, which would have banned virtually all noncompete agreements on a federal level. The odds were high it would be a Texas federal court, and also high that it would be a nationwide injunction.

That's exactly what happened yesterday.

Judge Ada Brown of the U.S. District Court for the Northern District of Texas entered a nationwide injunction blocking the rule from taking effect a mere 15 days before its effective date.

FTC bans all non-competes … Now what?

There's more than one way to skin a cat … or at least that's what many employers are hoping.

Yesterday, the Federal Trade Commission turned the workplace on its head by banning nearly all non-compete agreements.

I'm not going to summarize the FTC's Rule; your inboxes and LinkedIn feeds will be flooded with plenty of those … including this one we sent out this morning.

Suffice it to say that 120 days from the publication of the Rule in the Federal Register, employers will no longer be able to enforce any non-compete agreements except for those already in place with senior execs earning $151,164 or more annually.

It’s past time to self-regulate your use of noncompete agreements before the government does it for you

Boston Beer Co., the brewer of Sam Adams and other craft beverages, is taking heat for its overuse of noncompete agreements. In a recent article, the Boston Globe cites examples of several former lower-level Boston Beer employees forced out of the industry they love because of the noncompete agreements their former employer forced them to sign at their time of hire.

Legally speaking, to be enforceable a post-employment restrictive covenant must be narrowly tailored by time, geography, and a reasonable business interest worthy of protection. Yet, like the Boston Beer example, all too often employers require many too many employees to sign overly broad and overly restrictive agreements. It's bullying and a scare tactic. It's also legally unsupportable. And it's also why the federal government and many states are looking at regulatory and legislative solutions to limit their use.

If you can’t beat ’em, sue ’em.

“Competition is fine, cheating is not.” That’s what Elon Musk tweeted after Twitter’s lawyer’s cease and desist letter to Mark Zuckerberg went public.

Twitter accuses Meta of engaging “in systematic, willful, and unlawful misappropriation of Twitter’s trade secrets and other intellectual property.”

The problem, however, is that according to Meta, “No one on the Threads engineering team is a former Twitter employee — that’s just not a thing.” 

NLRB General Counsel Jennifer Abruzzo just obliterated non-compete agreements (maybe)

In my view, the proffer, maintenance, and enforcement of a non-compete provision that reasonably tends to chill employees from engaging in Section 7 activity … violate Section 8(a)(1) unless the provision is narrowly tailored to special circumstances justifying the infringement on employee rights.

With that sentence from NLRB General Counsel Jennifer Abruzzo's just-published memo — entitled, Non-Compete Agreements that Violate the National Labor Relations Act — Ms. Abruzzo sent employment lawyers (including this employment lawyer) scrambling to understand exactly what she said and what she means.

Federal agencies need to stay in their lanes

• National Labor Relations Board and Consumer Financial Protection Bureau announce new partnership to address employer surveillance, monitoring, and data collection in the workplace


• Worker advocates call on OSHA to set standard on employee surveillance


• NLRB General Counsel may seek to invalidate non-compete clauses in employee severance agreements

These are just a few of headlines I've recently read in which one federal agency or another is signaling an intent to regulate outside of its core mission. Federal agencies should stay in their lanes, period. OSHA regulates workplace safety. The NLRB regulates the relationship between unions and management, and in non-union settings the rights of employees to engage in protected concerted activity.

Spotting the employment law issues in “She-Hulk"

Donny Blaze was a former student of Kamar-Taj, having dropped out after failing to adhere to their strict teachings. He left, however, with a souvenir, a sling ring, which sorcerers use to open mystic portals. Blaze then uses the sling ring, along with what he learned during his time at Kamar-Taj, to spice up his otherwise very pedestrian cabaret magic act.

Wong, the Sorcerer Supreme, seeks your legal counsel to file suit against Blaze to enjoin his use of Kamar-Taj's mystic arts. 

What are the potential claims? Let's explore.

The time has come to limit the overuse and overbreadth of noncompetition agreements

It's been nearly five years since I asked this question: "Is your non-compete agreement killing a fly with a sledgehammer?" Now it seems that the federal government is asking the same question.

Yesterday, the Treasury Department published its report, "The State of Labor Market Competition" (as reported by The New York Times). The report sought to answer to investigate the effects of a lack of labor market competition on our country's labor market and answer whether that lack of competition hurts labor markets.

One of the key issues the report addresses is the impact of the overuse of noncompetitive agreements and other post-employment restrictive covenants. The report calls for laws or regulations to limit the use and impact of these agreements.

Whistleblowing and self-help discovery: lessons from Frances Haugen, the Facebook whistleblower

"Can she do that?" That was the question my wife asked me as we watched last night's interview of Frances Haugen, the Facebook whistleblower, on 60 Minutes.

The "that" was the revelation that Haugen stole a trove of confidential documents just prior to quitting her job to support her allegations against her employer.

"It depends," I told my wife, offering the stock lawyer answer to most questions.

You don’t need to wait for President Biden to fix what’s wrong with non-compete agreements

On Friday, President Biden signed an Executive Order on Promoting Competition in the American Economy. According to the Order, its goal is to promote a "fair, open, and competitive marketplace" and "the welfare of workers, farmers, small businesses, startups, and consumers" through the elimination or limitation of "excessive market concentration," which "threatens basic economic liberties, democratic accountability." One of the President's targets is "companies [that] require workers to sign non-compete agreements that restrict their ability to change jobs." Indeed, according to the President, half of private-sector businesses require at least some employees to enter non-compete agreements, affecting some 36 to 60 million workers.

Thus, President Biden ordered "the Chair of the FTC … to consider working with the rest of the Commission to exercise the FTC's statutory rulemaking authority … to curtail the unfair use of non-compete clauses and other clauses or agreements that may unfairly limit worker mobility."

Who owns intellectual property created for a company?

Growing up in Philadelphia, there are few things more beloved than the Phillie Phanatic. Which is why I’m so intrigued by the lawsuit the Phillies recently filed against the people who claim to own the rights to the mascot the team contracted them to create in 1978.

Which got me thinking … what rights does a company have to intellectual property created by an employee or an independent contractor?

No, the feds should not ban noncompetes because of #MeToo

A recent op-ed in the USAToday argues that the federal government should outlaw noncompete agreements because they trap workers in abusive workplaces.

Since women who complain about harassment face retaliation and even termination, often the only way to escape it is to find a new job. Yet for many women, continuing their careers with a new employer turns out to be impossible. 

That is because of noncomplete clauses. After they have resigned or even been fired, workers bound by noncompetes cannot accept employment in the same line of work or industry as their former employer for a specified period in a certain city, state or even the entire country. Nearly 30 million working people, including more than 12 million women, are locked into their jobs because of noncompete clauses.…

By depriving them of outside employment opportunities, noncompetes lock victims of harassment into abusive environments. 

I could not disagree more. Noncompete clauses are not responsible for trapping sexual harassment victims in abusive workplaces.

Lessons from Game of Thrones on an employee’s duty of loyalty #spoileralert

If you haven’t yet watched this week’s episode of Game of Thrones, consider yourself warned. There are spoilers below. Turn back now if you don’t want to be spoiled.

How to recover a stolen computer from an ex-employee in seven easy steps

As many as 60% of employees who are laid-off, fired, or quit admit to stealing company data. Sometimes, they download information on their way out the door. Sometimes they email information to a personal email account. And sometimes they simply fail to return a company laptop or other device that contains the data. In the latter case, it costs an average of $50,000 for an employer to replace a stolen computer, with 80% of that cost coming from the recovery of sensitive, confidential, and proprietary information.

When you put this data together, it becomes increasingly apparent that businesses must take proactive steps to protect their technology and data.

Bad employment policies lead to new legislation

All the way back in October 2014, I wrote about an Illinois Jimmy John's franchisee that had required all of its employees to sign a Non-Compete Agreement as a condition of employment. 

I was not kind to this employer:

It's one thing to bind your managers and other high-level employees to a noncompetition agreement. It's another to require the same of your low-level sandwich makers and cash-register operators. The lower down the food chain you move, the harder it becomes to enforce these agreements.… [W]e're talking about sandwiches. What's the legitimate business interest this employer is trying to protect?

Yet, in the nearly half-decade since, employers have not heeded my advice. And, when employers fail, legislatures sometimes step in to fix.

Non-solicitation agreements are not a license to steal an employee's already existing customers

Hall v. Edgewood Partners Ins. Center (6th Cir. 12/14/18) [pdf] asks a question that we see arise often in litigation with former employees over restrictive covenants—can an employer limit an employee's access to customers, clients, or other contacts that the employee had prior to the employment.

Or, to put it another way, who owns an employee's pre-existing book of business, the employee or the employer?

What’s the worst employee exit you’ve ever seen?

There is a right way to quit a job, and a wrong way to quit a job.

Last week, a Twitter employee demonstrated the worst of the latter.

Apple employee gaffe illustrates risk posed by YouTube videos in protection of trade secrets

An Apple employee lost his job this week after his daughter, Brooke Amelia Peterson, posted a YouTube video of her dad’s brand new, unreleased iPhone X.

ReCode has the details:

Peterson posted a five-minute video of a September day in Silicon Valley, which mostly included shopping for makeup and clothing. Harmless, and not unlike other YouTube videos posted by teenagers. 

But then, in the video, she visits her father on Apple’s campus in Cupertino for what seems like dinner. As they munch on pizzas in the company’s cafeteria, Peterson’s dad hands her his iPhone X to test. That’s when YouTube viewers got about 45 seconds of footage of Peterson scrolling through various screens on the new design and showing off its camera.