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The FTC Proposes Rule to Ban Noncompete Clauses for all US Workers

January 11, 2023

On January 5th, 2023, the Federal Trade Commission (“FTC”) announced a proposed rule that would ban employers from imposing either existing or prospective noncompete clauses on their employees. The proposed rule covers all employees regardless of industry or employer size, with minor exceptions in the sale of a business. The proposal is subject to a 60-day public comment period commencing when the FTC publishes the proposed rule. You can find the text of the proposed rule here.


The FTC’s Proposal

As stated above, the FTC’s proposed rule applies to all employees and to all noncompete clauses or agreements, whether prospective or existing. The rule would require employers to rescind all existing noncompete clauses and inform both former and current workers that their noncompete clauses are no longer in effect. This recission would be required to occur no later than 180 days after the FTC’s final rule is published. The only exception to the ban permits noncompete clauses entered into by a person who is selling a business or disposing of an ownership interest in a business entity in which the individual holds at least a 25% interest.


Although the proposed rule does not put an outright ban on other restrictive covenants, such as non-solicitation or no-hire provisions, it does ban “de facto” noncompete clauses that are “written so broadly that it effectively precludes the worker from working in the same field.” The proposed rule would overrule any state statute, regulation or order that is inconsistent with the rule.


Takeaways

The FTC’s proposal would be a sea change for restrictive covenants in employment. Employers need to be wary of the proposed rule’s ban on “de facto” noncompete clauses, as it is not clear by the FTC’s proposed rule what type of agreements and clauses this could entail. However, there is still time for comment on this rule until 60 days after the FTC’s publication of the proposed rule. Interested parties may file a comment online at https://www.regulations.gov, or on paper by mailing the comment to Federal Trade Commission, Office of the Secretary, 600 Pennsylvania Avenue NW, Suite CC-5610 (Annex C), Washington, DC 20580. Given the potential impact of this rule on employers’ existing and prospective restrictive covenants, employers should contact counsel to determine the agreements and clauses that could be at risk.


If your business has any questions on this or any other matters, please do not hesitate to contact the attorneys at The Royal Law Firm at 413-586-2288.

Employer’s Counterclaims in Response to Suit Under Wage Act Dismissed Per Employee’s Anti-SLAPP Motion

January 15, 2025
An employer brought counterclaims of malicious prosecution and abuse-of-process in response to a Wage Act suit brought by an employee. The Appeals Court cited that the employer’s counterclaims should have been dismissed under the anti-SLAPP (Strategic Lawsuits Against Public Participation) law. Anti-SLAPP laws are meant to provide parties with a way to quickly dismiss meritless lawsuits filed against them, usually in response to a lawsuit. The plaintiff in this case, an hourly laborer, claimed that his employer violated the Wage Act by failing to pay him for four of the six weeks he worked for them. The employer refuted these allegations, stating that the employee had only worked for two weeks, that he had been paid in full and then brought counterclaims of malicious prosecution and abuse of process. The District Court judge denied the plaintiff’s motion to dismiss the counterclaims under the anti-SLAPP law. When brought to the Appeals Court, the decision was reversed; the Appeals Court stated that the defendants did not meet the burden of showing that plaintiff’s claims lacked an objectively reasonable factual basis. This ruling suggests that it might behoove an employer to pause and wait to see if a plaintiff’s Wage Act claim fails before filing a counterclaim of abuse of process or malicious prosecution in response.  If your business has any questions on this topic or any other matters, please do not hesitate to contact the attorneys at The Royal Law Firm at 413-586-2288.

Compensation Plans and Contingent Compensation Pitfalls

January 8, 2025
Attorney Trevor Brice hosted a seminar on Wednesday, January 8, 2025, discussing the possible issues with current compensation plans and contingent compensation pitfalls made possible by recent court rulings. Some of the topics discussed included: Issues with current compensation plans under the FLSA Restrictive Covenants and Compensation Plans Problems with Commission-Based Compensation Plans and Possible Solutions When a Bonus is not actually a bonus and issues under the Massachusetts Wage Act This seminar was perfect for H.R. professionals and anyone in a management position. Please feel free to contact any of the attorneys at The Royal Law Firm if you have any questions on this topic!
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