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On January 5, 2023, the Federal Trade Commission (“FTC”) issued a notice of proposed rulemaking (“NPRM”) to ban the use of non-compete clauses with all workers. Although not yet enforceable, the proposed rule marks a dramatic departure from the current regulatory landscape, which is primarily dictated by state law. A non-compete clause is a contractual term that prohibits an individual from competing against the other party—either by working for or starting a competing business—for a certain period within a given geographic area. If finalized and enforced as-is, the proposed rule’s categorical prohibition of non-compete clauses would set a national standard, resulting in the preemption of the vast majority of states’ current regulation of non-compete clauses and abrogating decades of case law.
2023年1月5日，美国联邦贸易委员会发布了一则计划禁止竞业禁止条款的通知 (以下简称 “拟定规则”)，以禁止对所有劳动者使用竞业禁止条款。虽然该计划尚未进入实施阶段，但是该拟定规则与现有的法规下由州法律主导的监管范围大相径庭。竞业禁止条款是一种合同条款类型，禁止个人在规定的时间段以及特定的地理区域内，无论是通过为竞争对手工作或是创办竞争企业的方式，与另一方竞争。如果该拟定规则最终定稿，并且按原样执行，那么该拟定规则中所述的禁止竞业禁止的条款将被设定为一项国家标准，从而取代美国绝大多数州目前对竞业禁止条款的规定，并废除数十年的案例法。
The Proposed Rule’s Significance
As written, the proposed rule would declare non-compete clauses an unfair method of competition for an employer to enter into or attempt to enter into with a worker. The proposed rule broadly defines non-compete agreements as “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.”
Generally, other restrictive covenants, such as non-disclosure agreements and non-solicitation agreements, are not prohibited under the proposed rule. While most would assume this would mean that employers could still contract with employees to ban them from soliciting clients, customers, and employees, the proposed rule deploys a functional test to determine whether a specific covenant is a non-compete clause. Meaning even non-solicitation provisions could come within the scope of the NPRM because the NPRM aims to ban any agreement that has “the effect of prohibiting 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.”
一般来说，该拟定规则不禁止其他限制性协议，例如保密协议或禁止招揽协议。虽然大多数人认为这意味着雇主仍然可以与劳动者订立合同，禁止他们招揽客户、顾客和员工，但该拟定规则采用了功能性测试的方式来决定特定的协议条款是否属于竞业禁止条款。这意味着，禁止招揽协议也可以被纳入该拟定规则的范围内，因为该拟定规则旨在禁止任何 “具有禁止劳动者在与雇主结束关系后寻求或接受某项工作或创办某类企业的效果” 的协议。
For example, the NPRM identifies a non-disclosure agreement written so broadly to effectively preclude the worker from working in the same field after the conclusion of the worker’s employment with the employer as a functional non-compete that would violate the proposed rule. The proposed rule also prohibits contractual terms between an employer and a worker that requires the worker to reimburse the employer or a third party for training costs if the worker’s employment terminates within a specified time in situations where the payment is not reasonably related to the expenses the employer incurred to train the worker.
Further extending the proposed rule’s scope, the ban on non-compete clauses would apply to all workers. “Worker” is broadly defined as “a natural person who works, whether paid or unpaid, for an employer” and expressly includes, without limitation, “an employee, individual classified as an independent contractor, extern, intern, volunteer, apprentice, or sole proprietor who provides a service to a client or customer.” Because the ban on non-compete clauses is categorical, the proposed rule treats all workers the same, no matter the worker’s salary or position within the business.
在拟定规则下，禁止竞业禁止的条款范围进一步扩大，包括了所有的劳动者。在拟定规则下, “劳动者” 被广义地定义为 “一个为雇主工作的自然人，不论是否支付工资” 并且明确包括但不限于以下人员: “雇员，独立合同工人，外聘人员，内部实习人员，志愿者，学徒工人，或为客户提供服务的独资经营者。” 由于对竞业禁止条款的禁止是绝对的，该拟定规则对所有劳动者一视同仁，不考虑劳动者在企业中的职位或工资待遇。
Although the scope of the proposed rule is extensive, there are two notable exceptions. First, a non-compete clause may still be used to prevent a person from selling a business, selling all of the person’s ownership interest in the industry, or selling all or substantially all of the operating assets of a business from competing with the purchasers of the business. For this exception to apply, the restricted party must be an owner, member, or partner holding at least 25% ownership interest in the business entity. Second, the term “worker” does not include a franchisee in a franchisor-franchisee relationship.
尽管该拟定规则的涵盖范围极广，但是其提供了两个例外情况。第一，竞业禁止条款仍可用于防止某人出售企业、出售其在该企业中的的全部所有权权益，或出售企业的全部或大部分经营资产，使企业的购买者无法与其竞争。要适用此例外，受限制方必须要在企业中拥有至少25%的所有权权益。第二种例外情况是，该拟定规则下的 “劳动者” 不包括在特许权人-加盟商中的加盟商。
If the NPRM goes into effect, it will prohibit an employer from:
(1) entering into or attempting to enter into a non-compete agreement with a worker;
(2) maintaining a non-compete agreement with a worker; or
(3) representing to a worker, under certain circumstances, that the worker is subject to a non-compete agreement.
The proposed rule would require employers that entered into a non-compete clause with workers before the rule’s compliance date to rescind those non-compete clauses. Compliance with the proposed rule would also require an employer to provide written notice to its workers that the rescinded non-compete clauses are no longer in effect and may not be enforced against the workers.
The proposed rule would also supersede any inconsistent state statute, regulation, or rule, unless that state statute, regulation, or rule affords workers greater protections. Thus, the proposed rule would create a national regulatory floor while allowing states to provide additional protections for workers.
The Rulemaking Process and Expected Challenges
While the substance of the proposed rule provides a dramatic departure from the current regulatory landscape, it is not yet enforceable. The NPRM is just an initial step in the rulemaking process. The FTC will soon publish the NPRM in the Federal Register, which will trigger a 60-day public comment period. The NPRM invites public comment on specific questions, including whether franchisees should be covered in the definition of “worker” under the rule, low-and high-wage workers should be treated differently under the rule, and whether senior executives should be exempted from the rule.
Following the notice-and-comment period, the FTC will publish a final rule. The final rule could differ from the proposed rule based on the received public comments. After the final rule’s publication, employers will have 180 days to rescind current non-compete clauses and provide the required notice to workers. Upon the expiration of the 180-day compliance period, the FTC could commence enforcement.
However, the proposed rule could face delays beyond the rulemaking process. Any final rule is expected to face intensive legal challenges. These legal challenges primarily center around whether or not the FTC possesses the authority to impose such a sweeping regulation of non-compete agreements in the employment setting.
Immediate Considerations for Employers
Although the proposed rule is not yet finalized or enforceable, there are immediate actions employers can take to prepare for the changing regulatory landscape. First, concerned parties may submit vigorous comments explaining the potential costs and adverse effects of the proposed rule on their business. In encouraging stakeholders to submit a public comment, Commissioner Christine S. Wilson emphasized in her dissenting statement regarding the NPRM that “this solicitation for public comment is likely the only opportunity they will have to provide input not just on the proposed ban, but also on the proposed alternatives.”
虽然该拟定规则尚未最终确定或执行，但雇主可以立即采取行动，为不断变化的监管环境做好准备。首先，利益相关方可以提交有力的评论，解释拟定规则将对其业务所产生的潜在不利影响。为了鼓励利益相关方提交公众意见，联邦贸易委员会专员Christine S. Wilson在她关于对拟定规则的反对声明中强调，“这次征求公众意见可能是雇主唯一的机会，他们不仅可以就拟议的禁令规则提供意见，还可以就拟议规则的替代方案提供意见。”
Employers also can review their existing agreements with workers to assess their exposure to the proposed rule. That review should account for all restrictive covenants, including non-disclosure agreements and nonsolicit agreements, to assess whether such covenants effectively preclude the worker from working in the same field after the conclusion of the worker’s employment with the employer, therefore operating as a functional non-compete that would violate the proposed rule.
Dickinson Wright attorneys closely monitor the FTC’s actions regarding its regulation of employers’ dealings with their workers and are available to discuss how these regulations could impact your business. Additionally, Dickinson Wright attorneys stand ready to assist in preparing a public comment for submission on this proposed rule.
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