On January 1, 2022, the latest amendments to the Illinois Freedom to Work Act (“Act”) became effective. As we previously described, that Act sets forth various requirements governing restrictive covenant agreements in Illinois. Among other things, the Act codified the so-called Fifield Rule by defining adequate consideration for enforcement of a restrictive covenant to be either two years of

Continue Reading Questions Remain Regarding Adequate Consideration under Illinois’ Freedom to Work Act

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Confidentiality obligations and restrictive covenants are crucial tools employed by organizations to protect sensitive information, trade secrets, and competitive advantages. However, recent state law and regulatory developments and NLRB decisions

Continue Reading Upcoming Webinar! NLRB and Restrictive Covenants: Trends in Employment Confidentiality

The Nevada legislature passed new legislation recently that essentially bans all non-compete clauses in physician contracts while severely limiting the instances in which a hospital or psychiatric hospital may employ a physician as an employee, rather than as a contractor. Assembly Bill 11 was introduced in February 2023 and had passed both the Senate and Assembly by May. However, Nevada

Continue Reading Nevada Seeks to Ban Non-Competes with Physicians

Over last week, two seemingly unconnected events happened that impact restrictive covenant and labor law. First, the National Labor Relations Board’s General Counsel, Jennifer Abruzzo, issued a memorandum opining that certain non-compete agreements may violate the National Labor Relation Act by suppressing workers’ ability to engage in protected concerted activity. Second, the Supreme Court issued the Glacier Northwest, Inc. v.

Continue Reading Did the NLRB Preempt Non-Compete Litigation?
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The FTC is not alone in taking aim at non-competes. Yesterday, the NLRB’s General Counsel Jennifer Abruzzo issued a memo to all regional directors, officers-in-charge, and resident officers at the NLRB stating that non-competes in employment agreements and severance agreements violate the National Labor Relations Act except in rare circumstances. Specifically, Ms. Abruzzo claims that such covenants interfere with workers’

Continue Reading The NLRB Joins the Fray: Another Attack on Non-Competes

The California legislature is considering new legislation that proposes, among other things, penalties for an employer’s use of restrictive covenants as well as for attorneys who assist with their enforcement.

Assembly Bill 747 was introduced in February 2023 and, if passed, would make the following changes:

  • The existing exception for restrictive covenants that are part of the sale of a
Continue Reading California Weighs Formal Penalties for Attempts to Enforce Restrictive Covenants

The Board sent shockwaves through employment law in its February 21, 2023, decision in McLaren Macomb, which held that simply offering a draft settlement agreement with broad confidentiality and non-disparagement provisions violated the National Labor Relations Act (“NLRA”). We previously blogged about the McLaren decision and encourage you to read that post for a summary of the decision.

McLaren left unanswered a host of critical questions and, in the month following the decision, employers have not received any further clarity from the Board regarding how this decision will play out in practice. But some clarity—welcome or unwelcome—is coming. At some point this week, General Counsel Jennifer Abruzzo plans to release a guidance memo that will elaborate on the Board’s position.Continue Reading NLRB to Release Memo Clarifying Impact of McLaren Macombs on Confidentiality and Non-Disparagement Restrictions

The FTC announced yesterday that it was extending the deadline to submit public comments on its proposed rule banning employment non-competes.

With the extension, the FTC will now be accepting comments on the proposed rule until April 19. Originally, the deadline for submitting comments was March 20.

Information on how to submit comments can be found in the Federal Register notice.Continue Reading FTC Extends Public Comment Deadline on Proposed Rule Banning Employment Non-Competes Until April 19th

On February 21, 2023, the National Labor Relations Board (“NLRB” or “Board”) once again issued new precedent when holding that the mere proffer of a draft severance agreement containing broad confidentiality and non-disparagement provisions violated the National Labor Relations Act (“NLRA” or “Act”). The severance agreement provisions before the Board contained extremely broad restrictions and arose in the context of underlying unfair labor practices (“ULPs”) that included circumventing a certified bargaining representative.  It remains to be seen, therefore, whether the Board will seek to invalidate more narrowly-tailored confidentiality and non-disparagement provisions.Continue Reading NLRB Targets Confidentiality and Non-Disparagement Provisions

On February 16, 2023, the FTC hosted a public forum for the purpose of examining the proposed rule banning non-compete agreements. The agenda included, among other things, opening remarks from Chair Kahn, an overview of the rulemaking process by the FTC’s general counsel, a panel discussion, and comments from the public. A recording of the forum is available here.

In her preliminary remarks, Chair Kahn claimed that the proposed rule would increase workers’ earnings significantly and non-competes are an unfair method of competition. She claimed that the FTC has deep expertise on non-competes based upon enforcement, analysis, and addressing public comments. During the explanatory session, FTC staff explained that the comment period ends March 20th and encouraged the submission of additional comments. Staff also explained the functional test in the proposed rule and indicated that the ban applies to any agreement that functionally operates as a non-compete, which could be an overly broad non-disclosure agreement or training repayment agreement. FTC staff stated that the proposed rule does not apply to “run of the mill non-disclosures.”Continue Reading FTC Holds Public Forum Examining Proposed Rule to Ban Noncompete Clauses and Business Organizations Sharply Criticize It