Adapting to Change: How HR Can Navigate the FTC's Noncompete Ban

Olivia Rhye
11 Jan 2022
5 min read

Overview of the FTC Rule Banning Noncompetes

Written by: EPHY (

The Federal Trade Commission (FTC) has proposed a rule that would ban noncompete clauses in employment contracts. This rule aims to promote fair competition and economic mobility by preventing employers from restricting their employees' ability to work for competitors or start their own businesses. Here are the key points of the proposed rule:

  • Ban on Noncompete Clauses: The rule would make it illegal for employers to include noncompete clauses in employment contracts.
  • Retroactive Application: Employers would be required to rescind existing noncompete agreements and inform employees that these clauses are no longer in effect.
  • Scope of Application: The rule applies to all employees, including independent contractors, interns, and volunteers.
  • Enforcement: The FTC would have the authority to enforce the rule and impose penalties on employers who violate it.

Human Resource Policies and Procedures to Update

To comply with the FTC rule banning noncompetes, human resource departments will need to update several policies and procedures. Here are the key areas to focus on:

Employment Contracts and Agreements

  • Review and Revise Contracts: HR should review all existing employment contracts to identify noncompete clauses. These clauses must be removed or revised to comply with the new rule.
  • Update Templates: Standard employment contract templates should be updated to exclude noncompete clauses. Ensure that new hires are not presented with contracts containing these clauses.

Communication with Employees

  • Inform Affected Employees: HR must communicate with current employees who have noncompete clauses in their contracts. Inform them that these clauses are no longer enforceable and provide written confirmation of the rescission.
  • Training and Awareness: Conduct training sessions for HR staff and managers to ensure they understand the new rule and its implications. This will help prevent the inclusion of noncompete clauses in future contracts.

Alternative Protections

  • Confidentiality Agreements: Strengthen confidentiality agreements to protect sensitive company information without restricting employees' future employment opportunities.
  • Non-Solicitation Clauses: Consider using non-solicitation clauses, which prevent employees from poaching clients or other employees, as an alternative to noncompete clauses.

Recruitment and Onboarding

  • Update Recruitment Materials: Ensure that job postings, offer letters, and other recruitment materials do not reference noncompete clauses.
  • Onboarding Process: Update the onboarding process to reflect the new rule. Provide new hires with information about the company's policies on noncompete clauses and their rights under the new rule.

Legal Compliance

  • Consult Legal Counsel: Work with legal counsel to ensure that all changes to employment contracts and policies comply with the FTC rule and other relevant laws.
  • Monitor Compliance: Establish procedures to monitor compliance with the new rule and address any violations promptly.

Record Keeping

  • Document Changes: Keep detailed records of all changes made to employment contracts and policies. Document communications with employees regarding the rescission of noncompete clauses.
  • Audit and Review: Conduct regular audits to ensure ongoing compliance with the FTC rule and make adjustments as needed.

Impact on Former Employees Currently Being Sued for Noncompete Violations

The FTC rule banning noncompetes will have significant implications for former employees currently being sued for noncompete violations:

  • Dismissal of Cases: Many ongoing lawsuits related to noncompete violations may be dismissed, as the clauses would no longer be enforceable under the new rule.
  • Retroactive Application: Since the rule applies retroactively, former employees who were previously bound by noncompete clauses would be released from these restrictions.
  • Legal Recourse: Former employees may have legal recourse to seek damages or compensation for any harm suffered due to the enforcement of noncompete clauses prior to the rule's implementation.

Notable Federal Cases Involving Noncompete Clauses

Several federal cases have highlighted the contentious nature of noncompete clauses. Here are a few notable examples:

  • PepsiCo, Inc. v. Redmond (1995): PepsiCo sought to enforce a noncompete clause against a former executive who joined a competitor. The court ruled in favor of PepsiCo, emphasizing the protection of trade secrets.
  • IBM v. Visentin (2011): IBM filed a lawsuit to enforce a noncompete clause against a former executive who joined a competitor. The court denied IBM's request for an injunction, citing insufficient evidence of harm.
  •, Inc. v. Powers (2012): Amazon sought to enforce a noncompete clause against a former employee who joined a competitor. The court ruled in favor of Amazon, highlighting the importance of protecting confidential information.

These cases illustrate the varying outcomes of noncompete disputes and underscore the potential impact of the FTC's proposed rule on future litigation.

By updating these policies and procedures, human resource departments can ensure compliance with the FTC rule banning noncompete clauses and support a fair and competitive labor market.