Late last month, the FTC held a workshop called “Moving Forward: Protecting Workers from Anticompetitive Noncompete Agreements.” The panel included statements by FTC Commissioners that gave some insight into how the current commission might approach noncompetes (full transcript here). As this HR Dive article reports:

Federal Trade Commission officials and witnesses offered many critiques of noncompete agreements during a public hearing Tuesday, but little in the way of proposals that would match the scope of the agency’s short-lived nationwide ban on the agreements.

Noncompetes can have anticompetitive effects on workers, employers and consumers, said FTC Chairman Andrew Ferguson, adding that the commission would pursue enforcement against agreements that lack a sufficient justification and that have adverse effects. However, he decried the Biden-era FTC’s effort to issue a blanket prohibition as an overreach [. . .]

In lieu of a similar effort, Ferguson said FTC would take an approach of “education through enforcement,” recognizing that noncompetes may advance some pro-competitive employer interests but that they also must be narrowly tailored to achieve an employer’s goals.

The workshop followed a recent FTC enforcement action, several letters sent to healthcare companies warning of the use of noncompetes and a broad request for information seeking tips for further enforcement actions.

– Meredith Ervine