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President Biden Seeks to Limit Non-Compete Agreements

Today, President Biden announced he would issue an Executive Order that calls on the Federal Trade Commission (FTC) to adopt rules to curtail worker non-compete agreements. Interestingly, a week ago, the FTC approved changes to its Rules of Practice to modernize and expedite the way it issues Trade Regulation Rules. 

If you have followed our alerts, we predicted the elimination of non-competes would probably happen. In 2016, then-Vice President Biden was a vocal opponent against non-compete agreements. He led the Obama administration’s initiative seeking to limit or eliminate non-compete agreements. In his presidential campaign, Biden promised to “work with Congress to eliminate all non-compete agreements, except the very few that are absolutely necessary to protect a narrowly defined category of trade secrets....”

Since this is not an act of Congress, the question will be the extent and timing of any FTC rules.

The FTC enforces and administers a wide variety of federal consumer protection laws and regulations that prevent fraud, deception, and unfair business practices. It also develops policy initiatives on issues that affect competition, consumers, and the U.S. economy. 

Once the Executive Order is issued, it will be interesting to determine the authority under which the FTC will issue its rules. We anticipate that the FTC will assert authority under its broad power to protect consumers from unfair or deceptive acts or practice (“UDAP”) and unfair methods of competition (“UMC”). On January 9, 2020, the FTC held a workshop to examine whether there is a sufficient legal basis and empirical economic support to promulgate an FTC rule that would restrict the use of non-compete clauses in employer-employee employment contracts. After the workshop, the FTC extended the public comment period through March 10, 2020, but the Commission has not issued any subsequent guidance on the subject.

Stay tuned for additional information. With the announcement of the Executive Order, the outcome of the FTC non-compete analysis should soon be released. 

For additional information or strategic planning on non-competes or other restrictive covenants, contact Jeffrey C. Miller, jcmiller@bmdllc.com 216.658.2323 or any member of the BMD L+E team.

El Contrato Escrito: La Herramienta Predilecta

No existe mejor herramienta a una disputa contractual que un documento firmado por las partes en el cual se expongan las obligaciones y acuerdos entre éstas.

New State Budget Institutes Licensure Requirement for Ohio’s Hospitals

On July 1, 2021, Governor Mike DeWine signed Ohio’s final budget codified at Ohio Revised Code 3722.01 et seq., which includes a new licensing requirement for Ohio’s hospitals. For years, Ohio was the only state in the country that did not license its hospitals. This approach will now be replaced with new, detailed requirements that will require careful review and compliance. Here are some of the highlights concerning these new changes:

Healthcare Provisions in the Ohio FY 22-23 Budget

Governor Mike DeWine signed Ohio’s Fiscal Year 2022-2023 budget bill (HB 110) into law on July 1, 2021. At almost 1,000 pages and 74.1 billion dollars, the budget lays out the State’s spending for the next two years. Below are a few highlighted provisions from the budget that will be important for the healthcare industry in Ohio

Interim Final Rule for Surprise Billing

In an effort to implement the new bipartisan No Surprises Act, on July 1, 2021, the Department of Health and Human Services (HHS), along with the Departments of Labor and Treasury, issued an interim final rule to safeguard patients against unforeseen medical bills arising from out-of-network care.

New NIL Opportunities for Student-Athletes Require Diligent Review

On June 28, 2021, Governor Mike DeWine signed Executive Order 2021-10D, “Establishing the Duties of Colleges and Universities as to Name, Image, and Likeness Compensation of Student-Athletes.” The Executive Order was motivated by the passage of similar name, image, and likeness (“NIL”) regulations in seventeen (17) other states; Ohio followed suit to avoid a significant competitive disadvantage in attracting student-athletes to the state.