nondisclosure agreement

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The FTC rule banning post-employment noncompetes was published in the Federal Register on May 7, which means the rule will take effect on September 4, 2024, unless pending lawsuits to void the rule are successful.

Despite considerable uncertainty around when, or even whether, the rule will apply, employers should prepare now so as not to be caught flatfooted. The first step is to understand the rule’s parameters and potential impact on your business. Our FAQs guide you through the intricacies of the rule and the steps you should take while waiting for the lawsuits challenging the rule to be resolved.

Application of the Rule to Workers

1. Does the rule apply to B2B noncompetes?

No, the FTC rule does not apply to business-to-business (B2B) noncompetes. Instead, existing federal antitrust laws should continue to be considered when evaluating B2B noncompetes.

2. Does the rule apply to all workers?

No, there are limited exceptions. First, the rule does not invalidate existing noncompete agreements (i.e. agreements entered into on or before the effective date of September 4, 2024) with “senior executives.” After that date, new noncompetes with all US employees will be prohibited.

“Senior executive” means a worker who received “total annual compensation” of at least $151,164 in the preceding year (or the equivalent amount when annualized if the worker was employed during only part of the year) and who is in a “policy-making position.”

  • “Total annual compensation” may include salary, commissions, nondiscretionary bonuses, and other nondiscretionary compensation earned during the preceding year, but does not include the cost of, or contributions to, fringe benefit programs.
  • Those in a “policy-making position” may include the President, CEO or equivalent, or others with “policy-making authority,” meaning “final authority to make policy decisions that control significant aspects of a business entity or common enterprise.” In the Supplementary Information to the rule (the FTC’s commentary on the rule), the Commission notes “many executives in what is often called the ‘C-suite’ will likely be senior executives if they are making decisions that have a significant impact on the business, such as important policies that affect most or all of the business. Partners in a business, such as physician partners of an independent physician practice, would also generally qualify as senior executives under the duties prong, assuming the partners have authority to make policy decisions about the business.”

Second, the rule does not apply to workers outside of the United States. See FAQ 11 below.Continue Reading Thirteen Things You Didn’t Know About the FTC’s Noncompete Ban and Five Steps to Prepare Now in Case it Takes Effect

On March 24, 2022, Governor Jay Inslee signed into law Engrossed Substitute House Bill 1795, also known as the Silenced No More Act, which expands worker protection in Washington State. More specifically, it prohibits employers from requiring or requesting that workers sign agreements containing nondisclosure or non-disparagement provisions restricting their right to discuss factual information regarding illegal discrimination, harassment, sexual assault, retaliation, wage and hour violations, or any other conduct “that is recognized as against a clear mandate of public policy.”  Washington State’s Silenced No More Act will go into effect on June 9, 2022.

While other states such as California, New York, and Illinois have enacted similar NDA-narrowing laws covering different forms of employment discrimination, Washington’s new law is arguably the most restrictive. For instance, New York, California, and Illinois prohibit nondisclosure provisions related to unlawful discrimination in settlement agreements unless an employee wants such confidentiality. Washington State, however, takes it a step further by barring confidentiality clauses even if requested by the employee (as defined by the Act). As another example, New York law still permits nondisclosure clauses in pre-employment and severance agreements, but Washington’s law applies broadly to any agreement between the employer and “employee” as defined in the Act, including independent contractors not typically protected by EEO laws.

While Washington is the most recent state to pass a law on this subject, it may not be the last. The movement to prohibit secrecy covenants is gaining traction as workers’ advocates push for legislation at both the state and federal level banning the use of such covenants.

Prohibited Agreements

The newly-added section to Chapter 49.44 of the Revised Code of Washington provides that “a provision in an agreement between an employer and employee not to disclose or discuss conduct, or the existence of a settlement involving conduct, that the employee reasonably believed to be illegal discrimination, illegal harassment, illegal retaliation, a wage and hour violation, sexual assault, or against a clear mandate of public policy is void and unenforceable.” The Act broadly defines “employee” to include current, former, and prospective employees, as well as independent contractors; and encompasses all work-related conduct, whether occurring in the workplace or off-site.Continue Reading Washington State Takes Aim At Workplace NDAs Under Its Silenced No More Act