For healthcare entities that use non-compete agreements, the landscape has changed as much recently as it has at any point in recent memory. Several developments at the federal level have created a potential pitfall that did not materially exist until recently, i.e., a non-compete agreement violating antitrust law. Further, several recent state laws have heightened the bar for an employer seeking to enforce a non-compete. Finally, the new landscape of union organizing has created another key consideration for healthcare organizations that wish to protect against unfair competition, while at the same time maintaining high morale and avoiding unwanted union organizing.
Until recently, it was rare for a party to challenge a non-compete on the basis that it violated antitrust law. Several executive branch actions in the last year have significantly changed the landscape, however. Last summer, President Biden issued an executive order that “encouraged” the Federal Trade Commission to consider new regulations that would curtail the “unfair” use of non-compete agreements. Although the FTC has not yet issued such a rule, the executive branch has taken several steps that show a new strategy of pursuing challenges to certain types of non-compete agreements. The FTC has held public workshops for the purpose of gathering information that will help it assess how to limit non-competes. The Department of Justice also has brought several legal...
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