The Future of Non Competes: FTC Rulemaking and the State Law Patchwork

93 questions on the future of non competes, answered and cited by the UpLaw editorial team.

• Are agreements between employers not to hire each other's workers illegal?
• Are confidentiality agreements enforceable in every state?
• Are customer non-solicitation agreements enforceable in California?
• Are non-compete agreements enforceable against physicians?
• Are non-competes enforceable in California?
• Can a confidentiality agreement operate as a backdoor non-compete?
• Can a court force an employee to remain employed through a garden-leave period?
• Can an employer protect trade secrets without any non-compete at all?
• Can an employer use a choice-of-law or forum-selection clause to escape a state's non-compete ban?
• Can an employer use a non-compete simply to keep a talented person off the market?
• Can a non-compete be enforced against an employee who was laid off or fired without cause?
• Can a non-compete cover the entire United States or the whole world?
• Can a non-compete that was enforceable when signed become unenforceable later without anything being changed?
• Can a non-compete violate federal antitrust law?
• Can a non-solicitation clause be treated as an illegal non-compete?
• Can a software or IT company require its employees in Hawaii to sign non-competes?
• Can California void a non-compete that was signed in another state under another state's law?
• Can delay in enforcing a non-compete cost an employer its injunction?
• Can the FTC still challenge individual non-competes now that its rule is gone?
• Did the FTC's non-compete rule reach garden leave, non-solicitation, and confidentiality agreements?
• Do California employers have to tell employees that their non-competes are void?
• Do choice-of-law and forum-selection clauses protect an employer's non-compete?
• Do courts recognize the inevitable-disclosure doctrine?
• Does a clause applying a non-compete “regardless of the reason for termination” hold up?
• Does an employer have to give advance notice of a non-compete before the employee starts work?
• Does Florida presume irreparable harm when a restrictive covenant is breached?
• Does garden leave work for an employee based in California?
• Does Illinois treat garden leave as a prohibited non-compete?
• Does Massachusetts allow an employer to contract around its non-compete statute?
• Does Massachusetts require garden leave to support an enforceable non-compete?
• Does working in a fast-moving technical field make a non-compete harder to enforce?
• Do independent contractors and consultants have to receive the DTSA whistleblower notice separately?
• How do courts measure the geographic scope of a non-compete?
• How does workplace artificial intelligence complicate trade-secret protection?
• How long can a non-compete last before a court finds it unreasonable?
• How long do I have to bring a trade-secret claim under the DTSA?
• How many American workers are bound by non-compete agreements?
• How much does an employee have to earn before a non-compete can be enforced?
• How should a customer non-solicitation clause be drafted to survive review?
• How should a multistate employer manage non-compete compliance?
• Is a confidentiality clause in the employment agreement enough to satisfy the reasonable-measures requirement?
• Is a paid post-employment non-compete the same thing as garden leave?
• Is Congress likely to ban non-competes by statute?
• Is continued at-will employment enough consideration for a non-compete signed after employment has already begun?
• Is reverse engineering a competitor's product trade-secret misappropriation?
• Is the FTC's nationwide ban on non-compete agreements still in effect?
• Now that the FTC rule has been vacated, are my company's non-competes safe?
• Should an employer send a cease-and-desist letter before suing over a non-compete?
• What are “reasonable measures” to keep information secret under trade-secret law?
• What are the risks of copying the new employer on a cease-and-desist letter?
• What are the three dimensions of the reasonableness test for a non-compete?
• What claims does an employer typically plead when a key employee goes to a competitor?
• What counts as a legitimate business interest that will support a non-compete?
• What counts as misappropriation of a trade secret under the DTSA?
• What did LKQ Corporation v. Rutledge decide about forfeiture-for-competition clauses?
• What did Sunder Energy, LLC v. Jackson signal about Delaware's treatment of restrictive covenants?
• What do employee invention-assignment statutes protect?
• What does a modern replacement for a single broad non-compete look like?
• What does California Labor Code § 925 do?
• What happens if an employer leaves the DTSA whistleblower notice out of its agreements?
• What is a forfeiture-for-competition clause, and how does it differ from a non-compete?
• What is a non-compete agreement?
• What is blue-penciling a non-compete?
• What is “disintermediation,” and can an employer use it to justify a non-compete?
• What is garden leave?
• What is the Defend Trade Secrets Act?
• What is the DTSA's ex parte civil seizure remedy?
• What is the DTSA whistleblower-immunity notice?
• What is the inevitable-disclosure doctrine?
• What is the major questions doctrine, and how did it defeat the FTC's non-compete rule?
• What is the “race to the courthouse” problem in non-compete disputes?
• What legal authority did the FTC rely on for its non-compete rule?
• What mistakes cause employers to lose trade-secret protection?
• What must an employer prove to obtain a preliminary injunction enforcing a non-compete?
• What non-compete developments should employers watch in state legislatures?
• What penalty does Texas impose on an employer that drafts an unreasonable non-compete?
• What qualifies as a trade secret under the Defend Trade Secrets Act?
• What remedies does the Defend Trade Secrets Act provide?
• What should an employer do in the first 72 hours after a key employee leaves for a competitor?
• What tax and benefits problems can a garden-leave provision create?
• What would the FTC's Non-Compete Clause Rule have done if it had taken effect?
• When does the duty to preserve evidence arise in a non-compete or trade-secret dispute?
• Which categories of workers do states commonly exempt from non-competes entirely?
• Which states ban non-compete agreements outright?
• Which state's law governs a non-compete when the employee works remotely from another state?
• Why did the court in Ryan, LLC v. FTC set the FTC's non-compete rule aside?
• Why do courts enforce garden leave more readily than a conventional non-compete?
• Why do courts treat non-competes as disfavored contracts?
• Why do non-competes that bar working “in any capacity” for a competitor fail?
• Why is the DTSA especially valuable to employers in New York?
• Why must a departing employee's devices be forensically imaged before anyone turns them on?
• Will a court rewrite an overbroad non-compete, or throw the whole agreement out?
• Will a forfeiture-for-competition clause work in a state that bans non-competes?