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Course Details

Course Information
  • smart_display Format

    On-Demand

  • signal_cellular_alt Difficulty Level

    Intermediate

  • work Practice Area

    Employment and Workers Comp

Date & Time
  • event Date

    Tuesday, June 25, 2024

  • schedule Time

    1:00 p.m. ET./10:00 a.m. PT

  • timer Program Length

    90 minutes

Credit Information

  • This 90-minute webinar is eligible in most states for 1.5 CLE credits.

$297.00
CLE
ALL

This CLE webinar will provide an in-depth look at the Federal Trade Commission's (FTC) long-anticipated final rule banning worker noncompete provisions with few exceptions. The panel will examine the impact on businesses, address interaction with state law, and, given the expansive scope of the rule, address what counsel and clients should be doing now to prepare for compliance despite legal challenges.

Faculty

Russell Beck
Partner
Beck Reed Riden, LLP

Mr. Beck is a business, trade secrets, and employee mobility litigator, nationally recognized for his trade secrets and noncompete experience. A leading authority on the law of trade secrets, noncompetes, and employee mobility, he literally wrote the law, wrote the book, and teaches the course on noncompete law in Massachusetts. Similarly, Mr. Beck revised the Massachusetts Uniform Trade Secrets Act, wrote the books Trade Secrets Law for the Massachusetts Practitioner (1st ed. MCLE 2019) and Negotiating, Drafting, and Enforcing Noncompetition Agreements and Related Restrictive Covenants (6th ed., MCLE, Inc. 2021), teaches the course Trade Secrets and Restrictive Covenants at Boston University School of Law, and co-hosts a podcast on trade secrets and restrictive covenants called Fairly Competing.

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Paul J. Kennedy
Shareholder
Littler Mendelson PC

With more than 30 years of experience, Mr. Kennedy is a trial lawyer first, who has experience with a wide range of employment issues, including terminations, reductions in force, leave issues, wage disputes, investigations, employee theft, union issues, and IP protection, among others. A practiced and engaging public speaker, he is a frequent and able communicator at industry conferences and functions. Mr. Kennedy regularly litigates cases involving breach of restrictive covenants, employee raiding, and theft of trade secrets. He is counsel in numerous reported opinions that have defined unfair competition law in multiple jurisdictions, including Maryland and Virginia. Mr. Kennedy has also has drafted and negotiated various contracts, including employment, confidentiality and proprietary rights, and assignment of invention agreements. He has written and spoken extensively on issues relating to restrictive covenants, protection of trade secrets, and employee theft of proprietary information.

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Benjamin I. Fink
Shareholder
Berman Fink Van Horn, PC

Mr. Fink is known for his work in noncompete, trade secret and competition-related disputes. He has represented plaintiffs and defendants in disputes involving noncompete, non-solicitation of customers, non-recruitment of employees and non-disclosure/confidential information agreements for more than 25 years. Mr. Fink also has deep experience representing parties in disputes involving trade secrets, tortious interference with business and contractual relations, breach of fiduciary duty and/or duty of loyalty, unfair and deceptive trade practices, business defamation, trade name and trade dress infringement, Computer Systems Protection Act violations, Economic Espionage Act/Defend Trade Secrets Act claims, Electronic Communications Privacy Act claims, Computer Fraud and Abuse Act claims, Stored Communications Act claims and Telephone Consumer Protection Act claims. In this practice, he has successfully handled countless temporary restraining order and preliminary injunction hearings.

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Description

On Apr. 23, 2024, the FTC published its long-anticipated final rule banning the use of noncompete clauses in the workplace for most workers with limited exceptions. Despite immediate legal challenges, given the scope and impact of the final rule, counsel and their clients should understand the rule's requirements and begin preparing for compliance in the event that the rule fully survives judicial scrutiny. Timing will be important.

The final rule effectively covers any person or business operating for profit within the FTC's jurisdiction and imposes a prospective ban on new noncompete agreements with any worker, broadly defined to include employees, independent contractors, externs, interns, volunteers, apprentices, and sole proprietors. The rule also invalidates all existing noncompete provisions except for those with "senior executives" who are narrowly defined in the rule.

The rule defines "noncompete clause" as a term or condition that prohibits, penalizes, or prevents workers from seeking or accepting work after the end of their employment. The FTC states that whether a given contractual provision constitutes a "noncompete" clause is a fact-specific inquiry. Therefore, whether other restrictive covenants such as non-solicitation clauses can fall within the rule's purview although these are not specifically addressed.

Before the rule's effective date, employers will be required to provide written notice to current or former workers that their noncompete clause cannot be legally enforced and will not be enforced against the worker. There are limited exceptions to the ban.

Listen as our expert panel provides an in-depth look at the FTC's final rule banning the use of worker noncompete provisions. The panel will discuss the impact on businesses, address the current state of the rule's implementation including any legal challenges, and describe the rule's interaction with state laws. The panel will also offer best practices for preparing for compliance.

Outline

  1. Introduction
    • FTC Act Sections 5 and 6(g)
    • History of the FTC final rule
  2. FTC final rule
    • Purpose
    • Covered entities and workers
    • Noncompete clauses defined
    • Existing noncompete provisions currently in place
    • Limited exceptions
    • Employer notice requirement
    • State law interaction
  3. Legal challenges
  4. Preparing for compliance
    • Contract review and revision
    • Protecting trade secrets and other confidential information
    • Giving notice
    • Other considerations
  5. Practitioner takeaways

Benefits

The panel will review these and other important considerations:

  • What businesses and workers are covered by the final rule?
  • How does the rule define noncompete clauses?
  • How will the rule affect other restrictive covenants?
  • What action does the rule require of employers?
  • What actions can businesses take to protect trade secrets and confidential information in light of the final rule?
  • What interaction will the final rule have with state laws related to noncompete provisions?
  • How should counsel and their clients begin preparing for compliance?