January 30, 2026
Source: Saiber Employment Law Alert
On January 27, 2026, the FTC held a half-day workshop entitled “Moving Forward: Protecting Workers from Anticompetitive Noncompete Agreements.” At the outset, Chairman Andrew Ferguson explained that he disagreed with the 2024 Rule that sought to ban non-competes because the FTC lacked the authority to issue such a ban. However, he agreed with the underlying premise that non-competes can be, and often are, anticompetitive and unenforceable.
The primary takeaway from the workshop was that the FTC will use its enforcement authority to eliminate non-competes that are overly broad or designed to suppress competition. Chairman Ferguson stated that the FTC’s enforcement resources will be focused on non-competes that (a) do not advance pro-competitive interests and (b) are not narrowly tailored to advance that pro-competitive purpose. According to Chairman Ferguson, the easiest way to determine whether a noncompete is narrowly tailored is to “ask whether a less restrictive type of restraint would accomplish the goal or goals that the non-compete is purportedly meant to promote.” If you have a non-solicitation agreement, why do you need a non-compete to stop an employee from soliciting customers? If you have a non-disclosure agreement, why do you need a non-compete to stop an employee from disclosing confidential information?
The workshop made it clear that the FTC will use its enforcement tools to make an example of employers that use overly broad non-competes, and issued the following warning: “if you are an employer who believes you can abuse your employees by unlawfully restricting their job mobility, you can expect that the FTC will take an interest in you.” According to Ferguson, “if a firm imposes a non-compete agreement that is not tailored to achieve a pro-competitive objective, that is intended to suppress competition or the bargaining power of American workers, or that contains an unlimited scope or duration, then the FTC will enforce the antitrust laws against that firm.”
And for employees who believe they are subject to an agreement that unlawfully restricts them from taking a new job in their chosen field, the FTC urged employees to submit an anonymous complaint for investigation. Based upon the stories elicited from the speakers on the panel, the FTC appears to be particularly focused on low- and middle-income employees, and licensed professionals, such as medical doctors and veterinarians.
In short, the fact that the current FTC does not support the 2024 effort to ban non-competes, does not mean that it “supports” non-competes. To the contrary, the FTC is highlighting that overly broad non-competes are one of its focuses for enforcement actions. While it is impossible to know which non-competes will pique the FTC’s interest, FTC enforcement is something that employers and employees must consider when navigating post-employment restrictive covenants.
