table of contents
I. Introduction
1. What are the Non-compete Clause Rules?
2. Why should the non-compete agreement be terminated?
3. State regulations and practices
4. What are the main controversies?
1. Whether it has the right to enact (whether the procedure is legal and constitutional)
2. Definition of the scope of the non-compete agreement
3. The "unavoidable disclosure" rule
4. Notice
What will be the impact?
How should the employer respond?
On April 23, 2024, the five members of the Federal Trade Commission (FTC) (including the chairman) of the Federal Trade Commission (FTC) passed the final version of the Non-compete Clause Rule by a vote of 3-2, fully following the position of their respective political parties, which is considered a "non-compete" or "non-compete" rule between employers and employees Agreements (collectively referred to as "non-compete agreements") are inherently acts of restricting competition and should be prohibited and repealed in their entirety, subject to a few exceptions. [1] It is not surprising that the FTC has been formally adopted since the FTC has already issued a draft of the Federal Administrative Procedure Act on January 9, 2023, which is a procedural requirement for an administrative rule based on the Federal Administrative Procedure Act, and has solicited feedback from the community. However, because this is bound to have a very far-reaching impact on the entire labor and employment market and the development of scientific and technological innovation in the future, this provision has been attracting great attention and controversy in the society since the introduction of the draft. [2] This development has received a high degree of international attention due to the fact that many multinational companies will be affected, and many countries and regions have very similar problems.
The rule had been in the works since the end of President Barack H. Obama's administration, but his successor, President Donald J. Trump, was not interested, so it was almost at a standstill. After President Joseph R. Biden took office, he signed Executive Order 14036 on July 9, 2021, titled "Promoting American Economic Competition," which begins with the determination that "concentration of undertakings strengthens the power of corporate employers and makes it more difficult for workers to negotiate higher wages or better working conditions." Powerful firms require their workers to sign non-compete agreements, limiting the latter's ability to change jobs. Therefore, the chairman of the trade commission is instructed to formulate relevant administrative regulations in accordance with the law to curb the improper use of non-compete agreements that restrict the movement of workers. [3]
1. What are the "Non-compete Clause Rules"?
贸委会的新规将在《美国联邦行政规定汇编》（Code of Federal Regulations，简称C.F.R.）第16编（商业实务Commercial Practices）第1章（联邦贸易委员会）增加一个J子章（Subchapter J），称为“关于不公平方式竞争规则”（Rules Concerning Unfair Methods of Competition），并把《竞业条款规则》的新规定列为其中的第一个部份（Part 910），一共六个条文。
"Non-compete agreement" means that the employer or employer (any enterprise, institution, unit or even individual studio) and the employee (or employee) shall use an employment contract or its terms to prohibit the employee from working for any other enterprise, institution, unit or individual in the United States that competes with the original employer after the termination of the employment relationship or leaving the company, or to establish a competitive business with the original employer in the United States, otherwise he will be punished. [4]
The details of the new rules are summarized below:
1. In principle, it is a comprehensive prohibition. Any employer that concludes, attempts to conclude, or intends to implement (perform) or attempts to enforce a non-compete agreement with an employee, or that it indicates to its employee that it will be bound by a non-compete clause constitutes unfair competition. The meaning and scope of "worker" includes all regular employees (full-time or part-time and including senior executives or junior executives), temporary hires or contractors, interns and volunteers.
2. Validity of existing agreements. The non-compete agreement signed between the employer and its "senior executives" or "senior executives") before the effective date of these provisions can still be implemented (performed) without being affected by the effective date of the provisions. "Executive" means a worker in a position with policy-making authority who earns at least $151,164 or more in the year preceding termination (e.g., on an annualized basis for less than one year), including wages, commissions, nondiscretionary bonuses, etc., but excluding residency allowance or insurance; "Decision-making power" means "having a significant portion of the final decision-making power over a business entity or common enterprise (e.g., a group), but does not include persons whose role is limited to advising or influencing the decision (e.g., special assistants, staff members, etc.). [5]
3. Individual notification obligations. If the employer has entered into a non-compete agreement with its employees before the effective date, it must notify the contracted employees in writing on or before the effective date in a clear and conspicuous manner that the agreement is no longer valid or cannot be enforced (performed). This notice includes employees who are still employed and who have previously signed a non-compete agreement with the employer. However, if the employer no longer has the current valid contact information of the departing employee, it can be exempted from this obligation. Those who comply with this notice can enter the "safe harbor" exemption. In order to assist employers in fulfilling their notification obligations, the Commission has also provided a "model version" for reference. In addition to the English notice, the employer may also choose to add versions in other languages (including the Chinese version, see the figure below).
4. Sale-of-business exception. The foregoing prohibition does not apply to the sale or disposition of a business owner in bona fide (bona fide) with a non-compete agreement, but is still subject to federal antitrust or other relevant regulations. The original requirement of the draft Rules was that at least 25% ownership of a particular undertaking apply to the exception, but the final version removed this requirement.
5. Exceptions to existing disputes. If there is already a cause of action in relation to the non-compete agreement before the effective date, it will not affect the rights protection action taken by the original employer based on the cause of action (including the lawsuit for breach of contract). In addition, if the original employer is based on good faith (good faith basis), it believes that this provision does not apply to the reasons it claims and requires performance of the departing employee in accordance with the non-compete agreement, nor does it constitute unfair competition.
6. Competing with the laws of the states. To the extent that there is a direct conflict between the existing regulations of each state and the requirements of these Rules for the determination of unfair competition or the obligation to notify (i.e., entering into a non-compete agreement), this Rule shall apply superseding and shall not affect the remainder of the provisions. The powers of the law enforcement agencies of the states are not affected or altered in any way as a result of the enactment of this rule.
7. Effective Date. The rule is scheduled to take effect on September 4, 2024, or the 120th day after May 7, 2024, the day after it was published in the Federal Register (the date of official publication), but if a court injunction intervenes during this period, it will remain temporarily ineffective, depending on when the court lifts the injunction. The Office of Information and Regulatory Affairs (OIRA) of the Office of Management and Budget (OMB) has classified the rule as a "major rule" because of the impact it will have on the nation's labor market and economic innovation. In accordance with the requirements of the federal Administrative Procedure Act, it is also required to file with the Office of Presidential Management and Budget and the two houses of Congress for review, respectively. [6]
II. Why do you want to terminate the non-compete agreement?
During the administration of President Barack H. Obama, the United States issued a report entitled "Non-compete Agreements: Use, Potential Problems and State Correspondence" directly in the name of the White House. According to the survey data, only 24% of workers in the United States know (or hold) some trade or technical secrets, and less than half of all workers who sign a non-compete agreement hold trade or technical secrets. In addition, 15 per cent of the many workers who have signed such agreements do not have a bachelor's degree and 14 per cent earn less than $40,000 a year. This shows that there is not a specific connection between the signing of most non-compete agreements and the protection of their trade or technical secrets by manufacturers, and it does not fully explain why non-compete agreements are so widely used. [7] The report concludes that while non-compete agreements play an important role in protecting business interests and promoting innovation, and make employers more willing to invest resources in training their workers, they also increase the burden on workers, consumers, and the economy as a whole, limiting the growth of real wages and competition in the labor market. [8]
The reason why this issue has attracted the attention of government departments, and even the president has expressed concern, is that the media has previously revealed a number of problems caused by the generalization and alienation of non-compete agreements. The fuse is a well-known chain catering enterprise "Stick! Jimmy John's Gourmet Sandwiches requires all workers to sign a non-compete agreement, even those who receive minimum wage, clean or fry fries. As a result, public opinion condemned and the Attorney General's Offices of several states jointly intervened in the investigation. Eventually, the employer and the employee reached a settlement, in which the employer agreed to drop the clause and the lawsuit against a number of departing workers. [9]
And that's just the tip of the iceberg. Empirical evidence shows that the generalization and alienation of non-compete agreements have had a negative impact on the overall labor circulation, innovation and development and industrial competition in the United States. [10] The Commission is of the view that the aggregate effect of the current widespread use of non-compete agreements in the market has unduly disruptive effects on competition in the labour market, as it limits the possibility for people to change jobs, deprives them of opportunities to improve themselves in the relevant workplace environment, and undermines the goal of making the best use of their talents in society. [11] Although some agreements ostensibly only involve the relationship between a specific employer and the employee, the impact may be limited. However, when such agreements are widely used in the entire labor market and become the norm, the combined or cumulative effect of the accumulation of a large number of agreements will have an impact on the job transfer opportunities of workers, and will not be limited to workers who have signed the agreement, but will have a significant impact on the mobility of the entire labor market. From a competitive point of view, workers will have no choice but to stay in the existing positions and salary levels (at most limited salary increases), which will also block the opportunity for different employers and workers to seek the best match with each other, and will not be able to make the best use of their talents and benefits. [12]
Another phenomenon of alienation is that since the plaintiff (trade secret holder) often faces the challenge of difficult proof in the process of litigation for infringement of trade secrets, it is replaced by suing for breach of the non-compete agreement in terms of litigation strategy and practice, which can not only achieve the purpose of protecting its trade secrets in substance, but also relatively easily achieve the requirement of proof to win the lawsuit, save litigation costs, and play a sufficient deterrent effect on other employees who intend to "change jobs". However, with the introduction of this new rule, the adoption of similar legislation in several states, and the improvement of the federal civil regulations for the protection of trade secrets (mainly in the case of the Trade Secret Defense Act passed in 2016)[13], the combination of factors is bound to directly impact such litigation strategies, resulting in a significant increase in litigation cases for trade secret infringement in the future. [14]
Given the highly controversial nature of the issue itself, it will affect all levels of American society widely, which means that it is easy to be politicized, and if you are not careful, it will intensify the confrontation between labor and management. Traditionally, the Democratic Party in the United States has always supported the labor side, while the Republican Party has leaned towards the management side, so this issue will almost inevitably be highlighted and hyped up, and become a demand and bargaining chip for the two major political parties during the presidential and congressional races.
Three states stipulate and practice
Another thing that emboldens the Biden administration to eliminate almost all non-compete agreements this time is the existing legislation and practice in various states. According to the survey statistics of the Trade Commission, all states in the United States, including the capital District of Columbia, currently have a certain degree of restrictions on non-compete agreements, whether they are legislative or judicial, whether they are recognized or enforced, and they are not completely laissez-faire. The states of California, North Dakota, and Oklahoma have taken the most stringent stance, treating non-compete agreements with almost all workers as void with a few exceptions (such as the sale of a seller's original sole proprietorship, partnership, or corporation). [15] Of the jurisdictions that recognize and enforce such agreements to a limited extent, 11 states and the District of Columbia only recognize agreements above a certain pay scale; In the remaining 47 states, most of them have legislated to prohibit people in specific professions from entering into such agreements, and most even explicitly prohibit them directly for specific professions (especially physicians, because of the significant social good). [16]
Considering the experience and practices of these states, especially the three most restrictive states, the Trade Commission believes that employers can still enter into non-disclosure agreements (NDAs) on specific matters to protect their trade secrets, and believes that the impact on the labor market and economic development will be much lower than that of non-compete agreements. [17]
The Council's survey further shows that many states have introduced more restrictive legislation or amendments to non-compete agreements in recent years, and there is no indication of how the impact will be on the market. For example, the 12 pieces of legislation that use workers' wages or similar factors as the basis for permissibility have all been enacted in the last 10 years. Some have amended the original relatively laissez-faire legislation to add additional requirements for employers. For example, five states, Oregon, Maine, Massachusetts, New Hampshire, and Washington, now require employers to sign agreements with prior notice as a requirement or precondition for accepting employment, and not to be forced to sign agreements without considering opportunities or options. [18] Oregon and Massachusetts also passed the so-called "garden leave" or gardening leave law, which compels employers to continue to pay workers their normal wages between the time they formally leave their job and the expiration of their non-compete agreement (i.e., "leave without pay"). [19] In addition, the state of Washington specified that the agreement could not be valid for more than 18 months, and in Oregon and Massachusetts, it could not exceed one year. [20]
In particular, in 1941, California added a new section to the California Business and Professional Code dealing with contracts restricting trade, and Section 16600 first stated that any contract restricting any person from engaging in any lawful profession, dealing, or business is void ab initio. It was then amended in 2023 to clarify that this provision should be interpreted broadly as far as possible, and unless it fully complies with very limited exceptions, all clauses or agreements involving non-compete or prohibition in an employment relationship, no matter how narrowly and meticulously drafted, will be deemed invalid ab initio. [21] In addition, even if such an agreement is entered into outside of California, it is also non-enforceable in California. [22] Since the headquarters or main operation centers of countless high-tech industries are located in areas such as Silicon Valley or San Diego in the state, and Hollywood, which has always been an important center of the global film and television cultural industry, this means that even if the new rules of the Trade Commission cannot take effect for the time being due to judicial proceedings, California's own regulations will still have a certain extraterritorial extension effect, because if these enterprises with offices in California have disputes with their former workers, even the non-local former workers can take "pre-emptive" and " The company first filed a lawsuit in a state court in California, requesting the court to confirm that the contract signed with the original employer constituted a non-compete agreement and was therefore invalid.
What are the main controversies?
1. Whether it has the right to enact (whether the procedure is legal and constitutional)
On the same day that the Commission made public the final version of its new rules, Ryan, LLC, a company engaged in tax consulting and related software design, filed an indictment in the U.S. District Court for the Northern District of Texas, alleging that the Commission had exceeded its authority to enact the rule (without the legal authority of Congress), which was not only unlawful, but also unconstitutional. [23] The following day, the U.S. Chamber of Commerce (U.S. Chamber of Commerce) Chamber of Commerce, which essentially represents the interests and positions of the employers) also filed a lawsuit in the U.S. District Court for the Eastern District of Texas, alleging that the new rule was procedurally unconstitutional because the Commission had no authority to make such a rule; Or even if the Commission had the power to enact such a new rule, in substance, the new rules would almost completely negate the non-compete agreement, treating it as an overreach, encroaching on the areas that Congress has intended to legislate for many years, constituting arbitrary and capricious exercise of its powers, failing to consider other alternatives, distorting the meaning of unfair competition, and making it illegal to apply it retroactively. [24] One of the main arguments behind these two judicial challenges is that such a major issue, which would have far-reaching implications, should not be decided by a single executive branch through the formulation of administrative rules, but should be proposed by Congress following the normal legislative process and after detailed discussion by all parties.
This development does not preclude the possibility that the court may issue a temporary injunction before the substantive judgment is rendered, so that the new rule cannot be put into effect for the time being. In general, it takes at least two to three years for such litigation to reach the substantive stage, and at least six or seven years or more if you add to this the almost certain appeal and possible retrial by the Federal Supreme Court. Therefore, it may be that this new regulation will not see the light of day for a considerable period of time, which means that the policy leaders in the short and medium term will still be the regulations of all states, especially California. [25]
In addition to these two judicial proceedings, which mainly relate to the legality and constitutionality of the procedural aspects, there are other substantive issues that need to be clarified under the new rules, which means that even if the new rules can pass the first wave of procedural (legality and constitutionality) judicial challenges, there will probably be more litigation waiting for more clarity from the judiciary in the future.
2. Definition of the scope of the non-compete agreement
The draft rule was intended to include all "de facto" agreements, i.e., no matter how form or label used, as long as any clause (or combination of clauses) in it had the effect of substantially prohibiting the employee from seeking or accepting other employment opportunities, it was a "de facto non-compete agreement" and would in principle still constitute unfair competition. Although the final version removes this provision, the phrase "functions to prevent a worker from ......" is still retained in the definition of a non-compete agreement. In its note, the Commission explained that the term "is intended to indicate that if an employer adopts an excessively broad or onerous requirement or condition that functionally has the same effect as prohibiting or punishing its worker from seeking or accepting other work or starting his own business after leaving the job, the requirement or condition is a non-compete agreement under the final rule." ”[26]
Non-Disclosure Agreement
One possible alternative is to sign a non-disclosure agreement. However, the innate function or essence of the confidentiality agreement is to a greater or lesser extent to restrict the connotation of the employee's subsequent work. Will the above definition have a "chilling effect" on the use of confidentiality agreements by employers, and many people will be hesitant or even ignorant of what to follow? It remains to be clarified in subsequent judicial practice.
No solicitation agreements
The Commission's explanation of the new rules also makes it clear that so-called "non-solicitation agreements" (NSAs) will not be prohibited in principle, at least for contracts that do not functionally achieve the same function or substance as non-compete agreements. [27] "Non-solicitation agreement" means that an employer enters into a contract with its employee prohibiting any employee from soliciting other partners, employees (former colleagues) and/or clients or customers (including patients in the healthcare system) of the former employer after leaving the company, whether for his or her own benefit or that of the new employer. [28] In other words, it is an agreement to prevent an employee from "digging corners" of his or her former employer, whether it is a worker who is still in the employer or a client. Even so, there is still a significant grey area in practice, as the Commission has made it clear that it is impossible to generalise whether a non-solicitation agreement is so broad or cumbersome that it is functionally or substantially equivalent to a non-compete agreement. [29] This again leaves a considerable degree of uncertainty for the new rule, and it cannot be ruled out that it may also become a major point of contention in the future.
Identification and scope of "executives".
If, as defined in the Commission rules themselves, an exception is made to allow the existence of a non-compete agreement, the scope of "executives" is very narrow, and the position must have decision-making power over the operation of the entire enterprise or group and meet the statutory salary scale, even if it does not count as having decision-making power over specific or key departments of the enterprise. Accordingly, although the salary of the program producer and host with the highest ratings in a film and television channel may far exceed the legal standard, and the policy and orientation of the program will have a significant impact on the income and survival of the entire channel, they still do not constitute "executives". This means that if they want to lead the entire team to "jump" to another competing channel for any reason, or even hold some important trade secrets, the company that operated the original channel will basically no longer be bound by a non-compete agreement alone.
However, referring to the explanation of the new regulations of the Trade Commission, it can be found that even if it is only a local station, it is regarded as an "executive" because the decisions of the producer and host can have a significant impact on the operation of the entire video, which means that if there is a valid non-compete agreement before the rules take effect, the agreement can still be enforced, and it will be used to restrain the producer and the host from "changing jobs", which will also substantially affect whether the entire team can freely switch work. [30] While the Commission would like to use a simple and easy approach to the definition, in practice there are still considerable grey areas to be further clarified by judicial decisions.
Definition of "punishment".
The new rules list whether an employee will be "punished" for changing jobs as one of the important factors in determining whether a non-compete agreement is constituted. However, the rules do not provide a clearer standard for what exactly constitutes "punishment". If the employment contract stipulates how the employee will lose equity, bonuses, insurance or other dividends when he or she leaves the company, does such a provision itself constitute a preset penalty clause? According to common knowledge and common sense, if this is based on the fact that all workers leave their jobs before the expiration of their contracts, it should not be a big problem, because it has nothing to do with subsequent job changes; However, if there is any involvement or connection with subsequent employment, it is likely that a completely different determination will occur. But there is another gray area that has not yet been clarified, which means that it is a potential point of contention.
3. The "unavoidable disclosure" rule
According to the survey, 17 states in the United States currently recognize the so-called "inevitable disclosure doctrine", which allows the original employer to "preemptively" request the court to issue an injunction to prevent the threat of infringement of its trade secrets, even if no prior agreement has been signed. [31] This is a controversial rule because it is tantamount to having the court enforce a non-compete agreement unilaterally and fabricated by the court through a pre-trial injunction. [32] Thus, even in the states that have accepted this rule, there is a warning in the existing judgments that the application must be extremely cautious, narrow, and exceptional. [33] Given that confidentiality or non-solicitation agreements can only be initiated by the original employer after a substantial infringement has occurred (passive rights protection), and once the new rules come into effect, the employer can no longer rely on the non-compete agreement to take the initiative, it cannot be ruled out that the employer may try to sue under the "unavoidable disclosure" rule in the future (including filing "test actions" in 28 states that have not yet stated their position and requesting the local courts to take a stand). If the court still adopts this rule, it will be a reversal, partially invalidating the new rule, which means that there will be more litigation to follow.
4. Notice
The new rules require all employers to notify all current and former employees who have left the company by all practicable means before the effective date, but who are still bound by the non-compete agreement, and the agreement will automatically lapse (or be unable to perform) from that date. Obviously, the new rules only require the employer to exercise reasonable care, regardless of whether the intended recipient (the employee, especially the former employee who has left the company) actually receives it.
There is no provision in the new rules on what the legal consequences will be if the employer fails to give notice or fails to give full notice by then? One possibility is that it will be banned by the Trade Commission, which is considered to be an act of resistance to the law or constitutes an act of unfair competition, but because there is no penalty, it means that there is not necessarily any legal liability. But if it gets into the news media, it is obviously quite likely to become a public relations nightmare and cause a certain blow to the corporate image.
How will Woo have an impact?
According to the Council's assessment, after the implementation of the new rules, 18% of the working population (about 30 million people) can be immediately freed from the "shackles" of job change, improve the circulation of labor and human resources, promote competition in the overall market, and also facilitate the development of innovation and wage increases. The Council expects to add 17,000 to 29,000 patents per year (mainly for invention patents only, that is, an average annual growth rate of 11~19% in 10 years), more than 8,500 new ventures are expected to be established every year (increasing at a growth rate of 2.7%), the average annual salary of ordinary workers can increase by US$524 (the total wage growth in the next 10 years is about US$4000~488 billion), and a decrease of 740~% in the next 10 years$194 billion in healthcare costs. [34] These figures are estimates based on assumptions about a particular objective situation, implying a certain degree of subjective judgment and speculation, the actual effect of which can only be verified by time.
However, as a number of states have passed legislation in 2023 to prohibit or restrict non-compete agreements, even if the new rules of the Trade Commission cannot be implemented immediately, if the content or operation of such agreements is disclosed by the media, it will still have a considerable negative impact on its public image. In the future, the focus may turn to disputes over alternatives, such as non-disclosure agreements, non-solicitation agreements, and training-repayment agreements (TRAPs), which are pun intended, requiring employees who leave a certain period of time to repay the employer with interest on the employer's investment in human resources during that period.
How should the mainland employer respond?
For employers, it is still in an uncertain period because it is difficult to know whether the new regulations will take effect as scheduled. It is certain, however, that even in states (or competent courts) where non-compete agreements are still permitted, courts have taken a fairly strict and almost hostile stance on the interpretation of non-compete agreements, especially those that are more and more non-limitless. Therefore, the employer should take this opportunity to examine whether there is any need and value for the continued existence of the existing agreement. This is also a good opportunity for the employer's trade secret protection measures to be "checked", if there is a need or necessity to continue the contract, it is necessary to consider whether it can be replaced by a more specific and clear confidentiality agreement or a non-solicitation agreement, especially when writing the clauses, it is necessary to be as cautious and meticulous as possible, pay attention to the time limit and scope, and especially avoid the use of vague, ambiguous or excessively strict words and phrases, which can be relatively easily interpreted as constituting unnecessary or unreasonable restrictions and obstacles to the subsequent conversion of the employee.
Another possible approach is that, in addition to being as specific as possible about the matters or information to be kept confidential, if possible, consideration may also be given to specifying the unrestricted matters in the agreement, i.e., limiting the scope of the agreement by way of self-exclusion, which is less likely to be found to constitute a "functional" non-compete agreement. Fortunately, the Commission has made clear that these possible alternatives are available and has made it clear that the new regulation is never meant to reject them in one piece.
If the new rules take effect through a judicial challenge, it may be ironic that before they come into effect, we may see countless companies competing to enter into non-compete agreements (or renewals) with their "executives" in order to remain unaffected after the new rules come into effect. In other words, the original intention of the Trade Commission was to end the non-compete agreement in one fell swoop, but it is likely that it will be preceded by a wave of "signing" involving the non-compete issue of the "executives" of the enterprise, and it cannot be ruled out that this will cause management troubles and lead to conflicts or tensions between the "executives" and their affiliated enterprises. In any case, all U.S.-based businesses, large and small, should start a general inspection process now to review their internal trade secret protection policies, enforcement, and non-compete agreements.
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Annotations (scroll up and down to view)
【1】Federal Trade Commission, 16 Code of Federal Regulations (C.F.R.) Part 910, Non-Compete Clause Rule (April 23, 2024), 89 Federal Register (Fed. Reg.) 38342 (May 7, 2024).
【2】贸委会一共收到了将近27,000个反馈意见，由于各界的反应异常热烈，中间还曾把截止期限延长一个月。 参见FTC, Notice of proposed rulemaking; extension of public comment period, 88 Fed. Reg. 20441 (April 6, 2023)。
【3】Executive Order 14036 of July 9, 2021, Promoting Competition in the American Economy, 86 Fed. Reg. 36987 (July 14, 2021).
【4】16 C.F.R. § 910.1 (Definitions): “Non-compete clause means: (1) a term or condition of employment that prohibits a worker from, penalizes a worker for, or functions to prevent a worker from (i) 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 (ii) operating a business in the United States after the conclusion of the employment that includes….” See supra note 1, at 38502.
【5】贸委会同时采用了高阶收入与职务责任测试法则，认为只有名实相符的高管较能真正依自愿协商的方式以签订竞业协议作为交换其薪资所得及承担责任，而非出于非自愿甚至半胁迫的方式。 据贸委会的评估，目前约有0.75%的就业人口达到了或高于此一门槛要求。 至于这个薪资收入金额是以美国联邦劳工统计局（U.S. Bureau of Labor Statistics，简称BLS）对2023年全年的调研统计，取年度平均值的第85%水平而得。 参见BLS, Labor Force Statistics from the Current Population Survey, available at https://www.bls.gov/cps/research/nonhourly/earnings-nonhourly-workers.htm。
【6】在一个联邦行政机构出台了行政规则的最终版本后，一般自《联邦公报》公布日的次日起算不超过30日生效。 但如被归类为“显著规则”（significant rules，依据第12866号总统行政命令的定义，参见Executive Oder 12866 of September 30, 1993, Regulatory Planning and Review, 58 Fed. Reg. 51735 (October 4, 1993)）或“重大规则”（依据《小型企业规制公正执行法》（Small Business Regulatory Enforcement Fairness Act, § 251, as Title II, Subtitle E of Contract with America Advancement Act of 1996, Pub. L. 104-121, 110 Stat. 847, 868 (1996), codified at 5 U.S.C. §§ 801-808，也称为《国会审议法》（Congressional Review Act）的定义）时，其生效日必须延后至少60日，等待该办公室的审核通过，另还需向国会报备。 如国会不同意，可以两院的“共同决议”（joint resolution）方式予以否决。 参见5 U.S.C. § 802(a)。 依据上述规定，“重大规则”是指具备下列的三种情形之一：（1）会对经济的年度影响达到或超过1亿美元；（2）会对消费者、个别产业、各级政府机构或特定地理区域的成本或物价会造成大幅上升；或是（3）会对竞争、劳动、投资、生产力、创新或国际竞争力产生显著负面影响。 参见5 U.S.C. § 804(2)。
【7】The White House, Non-Compete Agreements: Analysis of the Usage, Potential Issues and State Responses (May 2016), at 4, available at https://obamawhitehouse.archives.gov/sites/default/files/non-competes_report_final2.pdf。 联邦财政部在此之前发布了一份名为《竞业禁止合同：经济效应与政策影响》的调研报告，替白宫预作铺垫。 参见U.S. Department of the Treasury, Non-compete Contracts: Economic Effects and Policy Implications (March 2016)。
[8] Ibid., p. 15.
【9】Dave Jamieson, Jimmy John’s Makes Low-Wage Workers Sign ‘Oppressive’ Noncompete Agreements, HuffPost, Oct. 13, 2014, at https://www.huffpost.com/entry/jimmy-johns-non-compete_n_5978180；New York State Office of the Attorney General, A.G. Schneiderman Announces Settlement With Jimmy John’s To Stop Including Non-Compete Agreements In Hiring Packets, Press Release, June 22, 2016, at https://ag.ny.gov/press-release/2016/ag-schneiderman-announces-settlement-jimmy-johns-stop-including-non-compete.
[10] According to a 2019 survey by the Economic Policy Institute, a non-governmental nonprofit organization, nearly half (46%) of employers in the United States have adopted some form of non-compete agreement for their employees. Even in a 2014 survey of 11,500 workers, 18.1% of respondents said they were bound by a non-compete agreement. See Alexander J.S. Colvin and Heidi Shierholz, Noncompete Agreements, Economic Policy Institute Report (December 10, 2019), available at https://files.epi.org/pdf/179414.pdf. For a detailed discussion, see "On Non-compete Agreements, Labor and Employment, and Market Competition: The Impact of the Proposed Abolition of Non-compete Agreements on Labor and Competition in the United States," Intellectual Property Frontiers, December 26, 2023, https://mp.weixin.qq.com/s/Gwzw-wuF9jyxqpogrDnsWQ.
【11】Federal Trade Commission, Non-Compete Clause Rule, 88 Fed. Reg. 3482, 3484-85 (January 19, 2023)（这是贸委会关于制定《竞业协议条款规则》的草案及说明）。
[12] Ibid., p. 3485.
【13】Defend Trade Secrets Act of 2016 (a/k/a DTSA), Pub. L. 114–153, 130 Stat. 376 (2016), codified at 18 U.S.C. § 1836 et seq..
【14】调研显示，自2018年到2022年的5年期间，一方面美国的总体商业秘密诉讼案件数量呈现递减趋势，但另一方面依据联邦商业秘密规制的案件比例则持续攀升。 参见Lex Machina, Trade Secret Litigation Report (2023)；另参见Stout, Trends in Trade Secret Litigation Report 2020, at 22, available at https://www.winston.com/images/content/2/0/v2/203824/trends-in-trade-secret-litigation-report-2020.pdf。
【15】California Business and Professional Code §§ 16600；另参见Nitro-Lift Technologies, L. L. C. v. Howard, 568 U.S. 17 (2012)。
[16] Commission, op. cit., note 11, at 3494 (for specific legal references to these 48 jurisdictions, see note 149 thereof).
[17] Ibid., note 1, p. 38362.
【18】Oregon Revised Statutes § 653.295(1)(a)(A)(effective January 1, 2008); Maine Revised Statutes, Title 26, § 599–A(4) (effective September 19, 2019); Massachusetts General Laws, ch. 149, § 24L(b)(i) (effective January 14, 2021); New Hampshire Revised Statute § 275:70 (effective July 28, 2014); Washington Revised Code § 49.62.020(1)(a)(i) (effective January 1, 2020).
【19】Massachusetts General Laws, ch. 149, § 24L(b)(vii) (effective January 14, 2021); Oregon Revised Statute § 653.295(7)(effective January 1, 2022)。 所谓的“园艺休假”就是对“中止”或“吊销”（suspension）的委婉表述，实质上的意义并无不同。
【20】Washington Revised Code § 49.62.020(2)(effective January 1, 2020); Massachusetts General Laws, ch. 149, § 24L(b)(iv)(effective January 14, 2021); Oregon Revised Statute § 653.295(3)(effective January 1, 2022).
[21] Ibid., note 15.
[22] Ibid., § 16600.5.
【23】Complaint, Ryan, LLC v. Federal Trade Commission, Case No. 3:24-cv-986 (N.D. Tex April 23, 2024).
【24】Complaint, Chamber of Commerce of the United States of America v. Federal Trade Commission, Case No. 6:24-cv-00148 (E.D. Tex April 24, 2024).此处的违法主张在程序上是指联邦《行政程序法》第706条（5 U.S.C. § 706），在实体上则是指《联邦贸易委员会法》第5条（15 U.S.C. § 45）。
【25】另一个值得关注的发展是纽约州。 该州州议会已于2023年9月通过了一个类似贸委会版本的第3100A号州参议院法案，参见Senate Bill S3100A, Prohibits non-compete agreements and certain restrictive covenants, available at https://legislation.nysenate.gov/pdf/bills/2023/S3100A，拟几乎全部禁止竞业协议，但遭到州长凯西·霍楚（Kathleen C. Hochul）的否决。 州长的立场是应该设置一个容许与企业高管订立协议的例外，她并试图协商一个能让各方愿意妥协的方案（华尔街的金融企业尤其反对此一立法），但最终因无法同意应以如何的薪资计算作为定义“高管”的基准而作罢。 不过法案的原始提案议员尚‧瑞安（Sean M. Ryan）已表示将在2024年的会期卷土重来。 参见Luis Ferré-Sadurní, Hochul Planning to Veto Ban on Noncompete Agreements, New York Times, December 23, 2023, at A17, available at https://www.nytimes.com/2023/12/22/nyregion/kathy-hochul-veto-noncompete.html。
[26] Ibid., note 1, pp. 38363-38364.
[27] Ibid., note 1, p. 38363.
【28】Miller v. Honkamp Krueger Financial Services, Inc., 9 F.4th 1011 (8th Cir. 2021).
[29] Ibid., note 1, pp. 38363, 38365.
[30] Ibid., note 1, p. 38420.
[31] The "unavoidable disclosure" rule means that if the original employer can prove that the former employee will inevitably disclose or use the trade secrets of the original employer when he works for the new employer, the court may issue a temporary or permanent injunction against the former employee, including prohibiting the employee from working with the new employer for a certain period of time and permanently prohibiting the employee from divulging the trade secrets of the original employer, based on the requirement of prior preservation. See also J. J. Thomas McCarthy, Roger E. Schechter, and David J. Franklyn, McCarthy’s Desk Encyclopedia of Intellectual Property (3rd ed.), at 296-297。 The 17 states adopted are: Arkansas, Connecticut, Delaware, Florida, Indiana, Illinois, Iowa, Minnesota, Missouri, New Jersey, New York, North Carolina, Ohio, Pennsylvania, Texas, Utah, and Washington, plus the capital city of the District of Columbia; The five states that rejected the adoption were: California, Colorado, Louisiana, Maryland and Virginia, and 28 states have yet to take a stand. See Phoseon Technology, Inc. v. Heathcote, 2019 WL 7282497, at *11 (D. Or. 2019)。
【32】EarthWeb, Inc. v. Schlack, 71 F.Supp.2d 299 (S.D.N.Y. 1999)(“[The doctrine] potentially requires a court to recognize and enforce a de facto noncompetition agreement to which the former employee is bound, even where no express agreement exists.”).
[33] Ibid. The Court therefore stressed that "the rule of unavoidable disclosure is intended to tread an extremely narrow channel in areas that are not popular with the judiciary." In the absence of evidence of actual theft by a particular worker, this rule can only be applied in the most exceptional circumstances. As to whether a pre-trial injunction should be issued, it is necessary to consider: (1) whether the two employers involved in the case are direct competitors and provide the same or very similar products or services; (2) whether the new position of the specified employee is almost equivalent to the original position in such a way that it can be reasonably expected that it will be difficult to dispense with the trade secrets of the original employer in order to fulfill the requirements of the new position; and (3) the relevant trade secrets are of high value to both employers. Other factors relevant to individual specific cases, such as the nature and characteristics of the industry to which they belong and the trade secrets, must also be taken into account. ”
【34】FTC, Fact Sheet on the FTC’s Noncompete Rule, available at https://www.ftc.gov/system/files/ftc_gov/pdf/Non-Compete-Fact-Sheet.pdf.
Author: Sun Yuanzhao
编辑：Eleven