Almost 2 years after the Ban on Non-Compete Agreements Amendment Act (“the Act”) was passed, the Act – with significant amendments – will become effective and applicable to all employers with D.C. employees on October 1, 2022. The law generally prohibits employers from entering into or imposing non-compete agreements and policies on D.C. employees that restrict their outside work activities both during and post-employment, subject to certain exemptions. Details regarding the Act are available here.

To prepare, covered employers should consider taking the following actions, after consulting with counsel:

  1. Determine which employees are covered by the Act. Only employees who work a certain amount of their time for the employer in D.C., and are not otherwise excluded, are covered.
  2. If you plan to utilize non-competition agreements after October 1, 2022, determine which covered employees may be subject to such agreements under the Act (e.g., “highly compensated” employees) and ensure such agreements meet the new requirements of the Act – including its notice provision.
  3. Examine the exemptions to the non-compete ban – like the exemption for long term incentive programs (such as those providing bonuses, equity compensation, stock options, and other performance driven incentives “typically earned over more than one year”) – and consider whether to utilize them to secure simultaneous or post-employment competition restrictions.
  4. Review any policies that ban moonlighting or simultaneous employment and determine whether they meet the various other exemptions to the Act’s prohibitions (e.g., conflict of interest policies) and provide sufficient protection.
  5. Provide notice of any policies restricting employees’ simultaneous employment efforts to covered employees within 30 days of an employee’s acceptance of employment; by October 31, 2022; and each time the policy changes.

We will continue to monitor and provide updates regarding the Act.

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Photo of Guy Brenner Guy Brenner

Guy Brenner is a partner in the Labor & Employment Law Department and leads the Firm’s Washington, D.C. Labor & Employment practice. He is head of the Government Contractor Compliance Group, co-head of the Counseling, Training & Pay Equity Group and a member…

Guy Brenner is a partner in the Labor & Employment Law Department and leads the Firm’s Washington, D.C. Labor & Employment practice. He is head of the Government Contractor Compliance Group, co-head of the Counseling, Training & Pay Equity Group and a member of the Restrictive Covenants, Trade Secrets & Unfair Competition Group. He has extensive experience representing employers in both single-plaintiff and class action matters, as well as in arbitration proceedings. He also regularly assists federal government contractors with the many special employment-related compliance challenges they face.

Guy represents employers in all aspects of employment and labor litigation and counseling, with an emphasis on non-compete and trade secrets issues, medical and disability leave matters, employee/independent contractor classification issues, and the investigation and litigation of whistleblower claims. He assists employers in negotiating and drafting executive agreements and employee mobility agreements, including non-competition, non-solicit and non-disclosure agreements, and also conducts and supervises internal investigations. He also regularly advises clients on pay equity matters, including privileged pay equity analyses.

Guy advises federal government contractors and subcontractors all aspects of Office of Federal Contract Compliance Programs (OFCCP) regulations and requirements, including preparing affirmative action plans, responding to desk audits, and managing on-site audits.

Guy is a former clerk to Judge Colleen Kollar-Kotelly of the US District Court of the District of Columbia.

Photo of E. Sydney Cone E. Sydney Cone

Sydney Cone earned her J.D. from Tulane University Law School, where she was the Senior Online Editor of the Tulane Maritime Law Journal and co-president of Tulane Women in the Law.

Prior to law school, Sydney was a paralegal for Lankler, Siffert, and…

Sydney Cone earned her J.D. from Tulane University Law School, where she was the Senior Online Editor of the Tulane Maritime Law Journal and co-president of Tulane Women in the Law.

Prior to law school, Sydney was a paralegal for Lankler, Siffert, and Wohl, LLP, focusing on white collar criminal and civil litigation.