On April 23, 2024, the Federal Trade Commission (FTC) voted to publish the “Non-Compete Clause Rule” to ban employers from entering into non-compete clauses with workers on or after the effective date. The rule will be effective 120 days after publication in the Federal Register. However, legal challenges are expected.

The FTC issued the rule under authority of sections 5 and 6(g) of the Federal Trade Commission Act (FTC Act):

• Section 5 of the FTC Act prohibits "unfair or deceptive acts or practices in or affecting commerce".
• Section 6(g) of the FTC Act authorizes the Commission “to make rules and regulations for the purpose of carrying out the provisions of this subchapter.”

First proposed in January 2023, the rule was finalized after consideration of more than 26,000 public comments.

An Overview Of The FTC’s Non-Compete Ban

Here’s what you need to know about the FTC’s final rule to ban non-compete agreements:

• The final rule bans new non-competes with all workers, including senior executives, after the effective date.
• Existing non-competes can remain in force for senior executives. The final rule defines the term “senior executive” to refer to workers earning more than $151,164 annually and who are in a “policy-making position.”
• Existing non-competes for workers other than senior executives are not enforceable after the effective date of the final rule. Further, employers must provide notice to workers that these agreements are no longer enforceable.
• The FTC rule supersedes state laws that conflict with the final rule.
• There are no recordkeeping or reporting requirements, other than notifying workers, excluding senior executives, that existing non-compete agreements are no longer enforceable.

How Does The FTC Define “Non-Compete”?

The final rule defines “non-compete clause” as “a term or condition of employment that prohibits a worker from, penalizes a worker for, or functions to prevent a worker from:

1. Seeking or accepting work in the United States with a different person where such work would begin after the conclusion of the employment that includes the term or condition; or
2. Operating a business in the United States after the conclusion of the employment that includes the term or condition.”

Are There Exceptions To The FTC’s Non-Compete Ban?

The ban applies to all persons who work or who previously worked, “whether paid or unpaid, without regard to the worker’s title or the worker’s status under any other State or Federal laws, including, but not limited to, whether the worker is an employee, independent contractor, extern, intern, volunteer, apprentice, or a sole proprietor who provides a service to a person.”

There are some exceptions to the FTC ban of non-competes:

• The final rule does not include a franchisee in the context of a franchisee-franchisor relationship. It does, however, include employees of the franchisee or franchisor.
• The final rule does not apply to non-compete agreements between a buyer and a seller of a business entity.
• Some employers are outside the FTC’s jurisdiction and therefore not subject to the rule, including banks, savings and loan institutions, federal credit unions, common carriers, air carriers, and certain non-profits.

What Happens Next?

Before the FTC can enforce the rule, it must publish the final version in the Federal Register, which contains all government agencies' rules and regulations. The final rule will go into effect 120 days following publication in the Federal Register, likely in September 2024.

That said, legal challenges are expected. FTC Commissioners Melissa Holyoak and Andrew Ferguson publicly shared dissenting options on the FTC’s authority to issue such a rule. The U.S. Chamber of Commerce also pledged to sue the FTC, calling the decision “not only unlawful but also a blatant power grab that will undermine American businesses’ ability to remain competitive.”

If the FTC rule is struck down, legal oversight of non-compete agreements would revert to state law. In Texas, non-compete agreements are enforceable if they meet certain requirements – at least until the FTC’s ban goes into effect.

For now, employers can keep using non-compete agreements but should prepare to adjust their practices if the legal challenges are resolved and the final rule becomes official.

Alternatives To Non-Competes In Texas

Non-disclosure agreements, non-solicitation agreements, confidentiality agreements, as well as business policies and practices that protect proprietary information can be effective alternatives to non-compete agreements.

The Texas Uniform Trade Secrets Act protects confidential information that gives one company a competitive advantage over another. The information must have actual or potential economic value derived from its secrecy, and the owner must have taken reasonable measures to protect the secrecy of the information. There is also federal trade-secret protection for interstate or foreign commerce under the Defend Trade Secrets Act of 2016.