05/19/2024

Special Bulletin! Non-Compete Rule is Final: FTC acts April 23, 2024

Things change rapidly. In March, I made a presentation to the Oklahoma Funeral Directors Association about the Non-Compete Rule. On April 23, I made a similar presentation to the Nebraska Funeral Directors Association.

Later that same day, April 23, 2024, the FTC released the much anticipated Final Rule about Non-Compete Agreements in the workplace.

I have discussed the FTC Non-Compete Agreement Rule in previous articles of the Director. The proposed rule had some issues of concern. Some, but not all of those issues have been addressed in the Final Rule.

The Final FTC Rule prohibits all Non-Compete agreements in the workplace with two small exceptions.

First, Non-Compete Agreements (NCAs) are still allowed against executive employees who make policy decisions and who earn more than $151,164 per year. I do not think this exception applies to many people in the funeral profession.

Second, Non-Compete Agreements (NCAs) are still allowed when done in conjunction with the sale of a business.

In the proposed rule (like a first draft), the NCAs were only allowed related to a sale for persons who owned 25% or more of the stock of the selling firm. (I discussed in detail how this would be a bad result for business sellers/buyers).

I supposed the FTC listened to me (and many, many others). The 25% requirement is NOT in the Final Rule. Now, related to a sale, the buyer/seller can agree to NCAs for any owners and/or employees provided each party receives compensation and is in agreement. This is good news.

Finally, the Final Rule keeps the idea of notifying employees that any existing NCAs are no longer valid. If your firm has an existing agreement that includes an NCA, you must give written notice to all the affected employees. You must keep a record of giving this notice to all employees who had an NCA. The FTC has provided the language to use in the form letter.

The notice requirement has a short time period. Employees who had an NCA in effect must be notified within 120 days of the publication of the Final Rule (Date TBD).

Your state association is working diligently to keep you apprised of all the changes in the workplace.

Note:  You can find the FTC’s release at:  https://www.ftc.gov/news-events/news/press-releases/2024/04/ftc-announces-rule-banning-noncompetes

The complete report can be found at: https://www.ftc.gov/system/files/ftc_gov/pdf/noncompete-rule.pdf

Note: The complete report is 570 pages, so be cautious about printing it.

About the author

Professor Marty Ludlum teaches business law at the University of Central Oklahoma and is a licensed attorney. He has made numerous presentations on the funeral industry at state and national conventions and has authored many articles for national and state funeral magazines. Professor Ludlum has a bachelor’s and master’s degree in economics, a master’s degree in communication and a Juris Doctor, all from the University of Oklahoma. Professor Ludlum also serves as the Education Director for Osiris Funeral Home Software and InSight Books. For questions, he can be reached at LudlumLawFirm@gmail.com.