July 09, 2021

President Urges Review of Antitrust Guidance for HR Pros

On July 9th, President Biden issued “An Executive Order on Promoting Competition in the American Economy.”  The order “encouraged” the Chair of the Federal Trade Commission (FTC) and/or the U.S. Attorney General to:

  •  consider whether to revise the Antitrust Guidance for Human Resource Professionals of October 2016;
  • “address agreements that may unduly limit workers’ ability to change jobs;” and
  • exercise “the FTC’s statutory rulemaking authority…to curtail the unfair use of non-compete clauses and other clauses or agreements that may unfairly limit worker mobility.”


  1. Know your state law. If you are an employer that uses non-compete, no-solicitation, or non-disclosure (aka confidentiality) agreements, watch the horizon. They are all under scrutiny and probably in that order. The District of Columbia has effectively banned the use on non-compete agreements. Several states have significantly restricted their use, barring their enforcement except for certain high wage workers earning more than $75,000 or $100,000 or certain “key” employees.
  2. Talk to your Congressional Representatives. If you have concerns, tell your U.S. Senator or Representative your business case. The Workforce Mobility Act, S. 483 was reintroduced in Congress again this year.  In short, the bill would prohibit the use of non-competes except in limited circumstances such as the sale of a business or dissolution of a partnership. I hear stories from clients and business owners who invest significant time and money to train certain employees or provide them with a license or certification. They do not want those employees to be able to take that investment to a competitor, who is then able to win a contract or garner a greater share of the market based on the skills for which the employer just paid.

Want more information?  Check out FiveL’s archived webcast, “Ethics, Antitrust, & Whistleblowing.” $25 pp and still provides certified HR Pros with 1.25 business credits.