September 04, 2025
FTC Seeks Public Comment on Employers’ Use of Non-Competes (and more)
On September 4, 2025, the Federal Trade Commission announced it was seeking public comments on employers’ use of noncompete agreements.
The target audience includes “members of the public, including current and former employees restricted by noncompete agreements, employers facing hiring difficulties due to a rival’s noncompete agreements, and market participants in the healthcare sector in particular.”
The request is for commenters “to share information about the use of noncompete agreements.” What strikes me as interesting is of the 13 questions with 14 sub-parts, they are written as if talking to individuals, not employers.
For example, the very first question is, “What is the name of any employer currently known to you to be using employee noncompete agreements?” That reads to me like the start of a potential fishing expedition. The questions also focus on barriers and challenges caused by noncompetes such as, “Are you aware of current employees avoiding seeking or turning down new job opportunities because of the noncompete agreements?” And the questions are not limited to noncompete agreements. There is one about employers’ use of non-solicitation and non-recruitment agreements, too! So, I wonder why? What is the Commission’s purpose? They answer that, too.
Their priority is to address “harmful labor market conduct through case-by-case enforcement and public advocacy” rather than by a categorical ban on all noncompete agreements. That gives me some comfort. I have never been a fan of noncompete agreements. I also understand certain or special circumstances in which an employer needs to protect investments it has made in or provided to a worker, such as significant costs in onboarding, training, certification, licensure, etc., only to have the new employee leave shortly thereafter and take the newly acquired knowledge, skills, and abilities to a competitor.
You can read the full RFI here. If you want to submit comments, you have until November 3, 2025, and you may do so confidentially. I’ll be drafting my responses between now and then and – no worries – I will not be naming names.
