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President Biden s Executive Order Takes Aim At Employee Non-Competition Agreements - Employment and HR
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Overview Of Biden Executive Order Addressing Non-Competes - Employment and HR
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President Biden s Recent Executive Order Takes Aim At Non-Competes
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Don’t be misled: President Biden’s July 9 Executive Order does not bar non-compete agreements. Rather, it “encourages” the Chair of the Federal Trade Commission to use rule-making to limit their use.
In fact, the only text in the Order addressing non-competes reads, in its entirety: “To address agreements that may unduly limit workers’ ability to change jobs, the Chair of the FTC is encouraged to consider working with the rest of the Commission to exercise the FTC’s statutory rulemaking authority under the Federal Trade Commission Act to curtail the unfair use of non-compete clauses and other clauses or agreements that may unfairly limit worker mobility.”
Overview
On July 9, 2021, President Biden signed an Executive Order on Promoting Competition in the American Economy (the “Order”), which, among other things, “encourage[s]” the “Chair of the [Federal Trade Commission (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.” To be clear, the Order does
not impact the current state of the law or enforceability of noncompetition agreements in any context, including those between an employer and its employees, partners, or in the context of the sale of a business. Rather, it “encourage[s]” the FTC to “consider” using its authority to “curtail the unfair use of non-compete clauses.” While there was much fanfare that the Order could amount to a ban on noncompetition agreements, the text of the Order and Presi