As many employers and employees know, non-compete agreements are fast becoming a centerpiece of many employer-employee relationships. A non-compete may not only protect a company’s confidential information from disclosure, but also restrict an employee who leaves to work for a competitor. Non-competes may also describe the duration of such restriction and geographic limitations.
Employers favor such restrictions because they protect their business interests in relation to their competitors. Employees dislike such restrictions, because they inhibit their practical choices when they leave one employer for another. Courts tend to look suspiciously at non-compete agreements because they limit the free flow of labor resources across the broader economy. Yet, when non-compete agreements are carefully drafted, they have been upheld by state and federal courts.
It may soon be time for employers to review their non-compete agreement due to a new presidential executive order that asks the Federal Trade Commission (FTC) to “curtail the unfair use of non-compete clauses and other clauses or agreements that may unfairly limit worker mobility.”
Each state has its own rules that regulate how far non-compete agreements can go in restricting the movement of former employees. Wisconsin’s rules regarding non-compete agreements are found in § 103.465, Wisconsin Statutes. Wisconsin law requires non-compete agreements to be properly limited in duration, scope and geographic area, among other limitations.
What role will the FTC play in changing the non-compete landscape? Most observers believe the agency will first conduct a state-by-state review of non-compete agreements. Then the FTC is likely to propose limits on the types of professions that may be subject to non-compete agreements.
As the landscape for non-compete agreements undergoes federal examination and likely recommendations for changes, employers and employees are well advised to consult with their attorneys for the latest developments with respect to the enforceability of non-compete agreements in Wisconsin and across the nation.