One of the biggest hot topics during the Biden administration was the legality and enforceability of non-compete agreements in employment. The Biden administration aggressively tried to eliminate employer-imposed restraints on employee mobility on multiple fronts. For example, the Federal Trade Commission (FTC) proposed to invalidate or restrict the use of noncompetition and nonpoaching agreements. Indeed, just days before President Trump was inaugurated, the FTC and Department of Justice updated the 2016 Antitrust Guidance for Human Resources Professionals to explain that non-compete, nondisclosure agreements, training repayment, and non-solicitation agreements may violate antitrust laws. The guidance also repeated the FTC’s and DOJ’s opinion that agreements between employers not to hire, solicit, or otherwise compete for workers (i.e., no-poach agreements) may result in criminal or civil liability.

Likewise, the National Labor Relations Board (NLRB) and its General Counsel launched their own attacks on non-competes (see Memorandums GC-23-08, GC-25-01, and J.O. Mory, Inc., a decision by NLRB Region 25 finding non-compete and non-solicitation provisions in an employment agreement violate the National Labor Relations Act).

With the change in administration, what does the future look like for non-compete agreements and other restrictive covenants?

While the Trump administration may be less aggressive than the Biden administration, it is unlikely to completely reverse course on employee mobility. First, limiting noncompetition agreements has received bipartisan support with the introduction of the Workforce Mobility Act in the Senate during both the first Trump administration and the Biden administration. Second, the DOJ’s first no-poach and wage-fixing cases were filed during the first Trump administration.

As with every change in administration, we do anticipate changes at the NLRB, as noted by my colleague Peter R. Rich. From the noncompetition front, we do anticipate less activity by the NLRB and its General Counsel in this area over the next four years. The same, however, is not true with the FTC.

In fact, we believe the Trump administration is unlikely to prop up agreements that restrict employee mobility. On February 24, 2025, President Trump’s pick for the FTC’s Chair, Andrew Ferguson, announced that the FTC would create a labor task force. Afterwards, Chair Ferguson issued a Directive Regarding Labor Markets Task Force, which outlined the FTC’s priorities. Chair Ferguson stated that “unfair competition or deception or unfairness” that can suppress employees’ wages is a “top priority” for the FTC moving forward. In the directive, Chair Ferguson identified no-poach, no-hire, noncompete, and wage-fixing agreements as potentially deceptive practices and unfair competition.

Thus, while we expect less activity on these topics from the NLRB, employers will likely be disappointed if they hope the Trump administration’s FTC will offer a complete respite from recent efforts to limit noncompetition and similar agreements. As we have previously advised, employers seeking to protect against unfair competition from employees must continue to exercise caution to avoid running afoul of the FTC’s rules and guidance. This includes monitoring state laws where you operate, asking whether you really need a non-compete agreement with an employee, and narrowly tailoring non-compete agreements to protect only legitimate business interests.