Strategy & Operations » What you need to know about the FTC’s ban on non-competes

What you need to know about the FTC's ban on non-competes

FTC's final rule bans non-compete clauses for most workers, altering talent retention and competition, with significant implications for CFOs' strategies.

The Federal Trade Commission (FTC) has issued a final rule that marks a significant shift in the employment landscape, particularly affecting non-compete clauses. This rule, codified under 16 CFR Part 910, is set to reshape the dynamics of labour mobility and competition within the workforce.

The FTC’s final rule, effective 120 days post-publication in the Federal Register, prohibits the use of non-compete clauses for workers, with a nuanced approach for existing agreements. For senior executives, existing non-competes remain valid, while for other workers, such clauses will no longer be enforceable post the effective date. Employers are mandated to notify workers, excluding senior executives, of the non-enforceability of their non-competes, with the FTC providing model language to aid compliance.

The rule’s genesis lies in the FTC’s authority under sections 5 and 6(g) of the FTC Act, aiming to address the unfair competition methods non-competes represent. The decision follows extensive review, including over 26,000 public comments, and empirical research indicating the detrimental impact of non-competes on competition and innovation.

Implications for CFOs

The FTC’s final rule on non-compete clauses represents a seismic shift in the employment landscape, with far-reaching implications for businesses and workers alike. The prohibition of these clauses for workers, barring a few exceptions for senior executives, aims to promote fair competition and labour market fluidity, aligning with the FTC’s mandate under the FTC Act.

For CFOs, this regulatory change necessitates a comprehensive reevaluation of talent retention strategies and competitive dynamics. With an estimated 30 million Americans currently bound by non-compete agreements, the newfound freedom for non-senior executive workers to explore opportunities could significantly alter the talent landscape. CFOs must brace for potential increases in labour mobility and consider alternative mechanisms, such as non-disclosure agreements, to safeguard proprietary information without relying on the now-prohibited non-competes.

Moreover, the FTC’s commitment to ensuring fair competition and labour market fluidity through this rule underscores the broader regulatory shift towards promoting worker mobility and curbing anticompetitive practices. CFOs should anticipate further regulatory scrutiny in this domain and proactively align their organization’s practices with the evolving legal landscape.

Compliance with the new rule will be a critical challenge, as the FTC’s limited resources mean that the onus will largely fall on employers to ensure adherence. CFOs must ensure their organizations are prepared for this new regulatory environment, both in terms of legal compliance and strategic human resource management. This may involve revising employment contracts, notifying affected workers of the non-enforceability of their non-competes, and implementing robust internal processes to prevent inadvertent violations.

Furthermore, the FTC’s encouragement of reporting suspected violations adds an additional layer of complexity, as disgruntled employees or competitors may leverage this mechanism to scrutinize an organization’s practices. CFOs should work closely with their legal teams to establish robust compliance protocols and mitigate potential risks arising from non-compliance.


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