UNITED STATES OF AMERICA 

Federal Trade Commission 

WASHINGTON, D.C. 20580 

Office of Commissioner 

Rebecca Kelly Slaughter 

1

New Decade, New Resolve to

Protect and Promote Competitive Markets for Workers

Remarks of Commissioner Rebecca Kelly Slaughter1

As Prepared for Delivery at FTC Workshop on Non-Compete Clauses in the Workplace

Washington, DC

January 9, 2020

Introduction

Thank you to the Chairman, OPP, and the rest of our FTC staff who worked so hard to put 

together this workshop. I also want to thank the advocates and academics—including those 

participating today—who have raised awareness about and contributed both research and new 

ideas to the discussion concerning non-compete provisions in employment contracts. State 

attorneys general and their staff have also been at the forefront of this issue by investigating and 

initiating legal action to end unjustified and anticompetitive non-compete clauses in employment 

contracts.

Finally, I want to thank those in the labor community who advocate day in and day out to 

improve the plight of workers in our country. You play a critical role in the antitrust law and 

policy community and we appreciate your expertise on this issue and others that lie at the 

intersection of labor and antitrust. 

The principal message I hope to convey with my remarks is that while antitrust enforcement and 

competition policy initiatives will not be a panacea for the struggles facing American workers, 

ensuring competitive labor markets is a key ingredient of the recipe for improving economic 

justice for workers. 

Importance of Antitrust Law to Workers

We are gathered here today, a little more than a week after ringing in a new decade. It is a time 

when we celebrate renewed hope and reflect upon what we can individually or collectively do to 

better the lives of others. 

Competitive markets are a cornerstone of our economy, entrepreneurism, and the American 

dream. Antitrust and competition law has long been focused on the effect anticompetitive 

 

1 The views expressed in these remarks are my own and do not necessarily reflect the views of the Federal Trade

Commission or any other commissioner.
2

mergers and conduct have on products and consumers. This is important work that must 

continue. It ensures that all of us are protected from harms such as paying higher prices for lower 

quality and less innovative goods and services.2

But the market of goods and services for consumers is not the only one to which antitrust law is 

attuned; a competitive market for labor benefits workers through higher wages and better 

benefits and other terms of employment.3 Workers suffer when competition for their labor is 

chilled and employers are insulated from competition. Job opportunities become more limited, 

and workers are less able to negotiate better pay, benefits, or working conditions. It is fitting that 

we are here today, at the dawn of a new decade, to discuss non-compete provisions in 

employment contracts and whether the FTC should initiate a rulemaking to address unfair or

anticompetitive use and enforcement.

Real World Impact of Non-Competes

Today’s first panel provided useful insight regarding the legal issues surrounding non-compete 

provisions. I would like to follow this by taking a step back to talk about why we are here in the 

first place—American workers and their ability to reap the benefits from fair and open 

competition for their labor. 

And before I dive in, I want to make a brief note about word choice. Non-compete clauses are 

often referred to by folks across the ideological spectrum as “non-compete agreements.” But you

may notice that throughout my remarks I refrain from using the term “agreements” to refer to 

these provisions, since agreements refer to a willing meeting-of-the-minds between parties. One 

of the concerns that I have about these provisions is that they rarely represent real agreements 

and are instead restrictions unilaterally imposed upon workers by their employers.

So to return to the substance, non-compete provisions have been around for many years; 

recently, thanks to the work of journalists, labor and antitrust advocates, and others, many 

examples have come to light of non-compete provisions that restrict workers who lack any 

bargaining power in employment negotiations and who tend to have no other choice than to 

accept a non-compete in order to secure employment. Even if a worker had the wherewithal to 

 

2 Many of the FTC’s cases involve products and services that are not sold directly to consumers but that are inputs 

into products or services consumers ultimately purchase or pay for. See, e.g., Press Release, Fed. Trade Comm’n, 

FTC Challenges Illumina’s Proposed Acquisition of PacBio (Dec. 17, 2019), https://www.ftc.gov/newsevents/press-releases/2019/12/ftc-challenges-illuminas-proposed-acquisition-pacbio; Press Release, Fed. Trade 

Comm’n, FTC Challenges Proposed Merger of Two Hydrogen Peroxide Producers (Aug. 2, 2019), 

https://www.ftc.gov/news-events/press-releases/2019/08/ftc-challenges-proposed-merger-two-hydrogen-peroxideproducers; Press Release, Fed. Trade Comm’n, Statement of the FTC’s Bureau of Competition Regarding 

Announcement that Republic National Distributing Company and Breakthru Beverage Group Have Terminated 

Their Acquisition Agreement (Apr. 8, 2019), https://www.ftc.gov/news-events/press-releases/2019/04/statementftcs-bureau-competition-regarding-announcement-republic.

3 U.S. DEP’T JUSTICE & FED. TRADE COMM’N, ANTITRUST GUIDANCE FOR HUMAN RESOURCE PROFESSIONALS 2 

(2016), https://www.ftc.gov/system/files/documents/public_statements/992623/ftcdoj_hr_guidance_final_10-20-

16.pdf.
3

try to negotiate over such a provision in her employment contract, 30 to 40 percent of employees 

are asked to sign after accepting employment, often on the first day of work.4

Surveys have estimated that 16 to 18 percent of all U.S. workers are currently covered by a noncompete provision, meaning that they have restrictions on where they can work after they leave, 

lose, or are let go from their current job. This includes 12 percent of workers who earn less than 

$20,000 per year and 15 percent of those who make $20,000 to $40,000 per year.5

Sandwich makers at Jimmy John’s sandwich shops were prevented for a period of two years 

from working at competing businesses that earn 10 percent of their revenue from selling 

sandwiches. One Jimmy John’s assistant manager left her job and transitioned to a completely 

different industry, where she did not make as much money as she could have in the restaurant 

business, out of fear that Jimmy John’s would sue her over the non-compete.6Illinois Attorney 

General Madigan sued and obtained a settlement where Jimmy John’s agreed to eliminate this 

indefensible non-compete provision in its employment contracts, which notably applied not only 

to the three mile radius around the Jimmy John’s where the worker was employed but also to any 

sandwich business located within three miles of any Jimmy John’s shop anywhere in the 

country.7

While it would be impossible to know how many workers have been prevented in practice from 

leaving or seeking to leave a job due to a non-compete, we know that all it takes to chill workers 

from seeking a better opportunity is a manager waiving a non-compete provision or threatening 

to sue them if they get a new job. Illinois Attorney General Madigan and Jane Flanagan, one of 

our panelists today, wrote about how several employees of a spa and hair salon said that their 

employer “bragged” about threatening lawsuits against anyone who left for a rival salon. The 

employer even went so far as to threaten a former employee by brandishing court papers. They 

also cite instances of employers mentioning non-compete provisions during reference checks for 

their former employees.8

Non-competes can strike fear into workers. A public comment in this proceeding was filed by an 

accountant who has a one-year non-compete clause in his employment contract with his former 

 

4 Evan Starr, J.J. Prescott, & Norman D. Bishara, Noncompetes in the U.S. Labor Force, (U. Mich. L. & Econ.

Research Paper No. 18-013, 2019), https://ssrn.com/abstract=2625714; Matt Marx, The Firm Strikes Back: Noncompete Agreements and the Mobility of Technical Professionals, 76 AM. SOC. REV. 695 (2011), 

https://pdfs.semanticscholar.org/f0cc/a352c57244794405de5f4015ed1ec55bf93b.pdf?_ga=2.189624107.168417047

5.1578502723-753797417.1578502723.

5 Starr, Prescott, & Bishara, supra note 3.

6 Scrutiny on Worker Non-Compete Deals, CHATTANOOGA TIMES FREE PRESS (Jan. 3, 2015), 

https://www.timesfreepress.com/news/national/georgia/story/2015/jan/03/scrutiny-worker-non-competedeals/280886/. 

7 See Press Release, Illinois Attorney General, Madigan Announces Settlement With Jimmy John’s For Imposing 

Unlawful Non-Compete Agreements (Dec. 6, 2016), 

http://www.illinoisattorneygeneral.gov/pressroom/2016_12/20161207.html. 

8 LISA MADIGAN & JANE FLANAGAN, OVERUSE OF NON-COMPETE AGREEMENTS: UNDERSTANDING HOW THEY ARE 

USED, WHO THEY HARM, AND WHAT STATE ATTORNEYS GENERAL CAN DO TO PROTECT THE PUBLIC INTEREST

(2018) (report prepared for Unrigging the Market: Convening to Restore Competitive Labor Markets, a conference 

at Harvard Law School), 

https://lwp.law.harvard.edu/files/lwp/files/webpage_materials_papers_madigan_flanagan_june_13_2018.pdf.
4

employer. After being fired from that job and finding a new job, he is frightened that his old firm 

will sue him and his family for regaining employment in the accounting field for which he was 

trained.9

These non-compete provisions are sometimes boiler plate provisions in contracts with all of a 

firm’s employees without any regard to whether there may a legitimate justification or a lessrestrictive means of protecting trade secrets or proprietary business information. New York and 

Illinois brought suit against WeWork, which prevented workers at all levels—from executives to 

baristas to cleaners—from working for competitors.10 The settlement exempted all but 100 

executive-level leaders at WeWork from the non-compete restrictions. Similarly, Illinois 

investigated a childcare provider that required the same non-compete for all of its employees, 

including kitchen staff, bus drivers, housekeepers, teachers, and landscapers.11

And we know that non-compete clauses can limit employee mobility and competition even in 

states where non-compete clauses are legally unenforceable. One study found that 40 percent of 

workers reported turning down a job offer from a competitor because of a non-compete, even 

though they worked in states where such provisions were entirely unenforceable.12 Overly broad 

non-competes can make it difficult for entrepreneurs to start new businesses and can make it a 

challenge for those start-ups to find qualified employees.13

The examples of how non-competes affect people’s livelihoods and ability to earn a living go on 

and on—a Florida security guard was blocked from working as a security guard in all of 

Florida,14 summer camp counselors couldn’t work for competing camps,15 an hourly laborer 

shoveling dirt for an environmental drilling company was prevented from seeking a higher 

paying job at competing firm,16 low-level customer service employees at a check-cashing 

business were bound by non-competes,17 and coffee shop baristas couldn’t work for another 

coffee shop within a 10 mile radius for 18 months.18 Non-competes have even been applied to 

 

9 Public Comment on FTC’s Workshop on Non-Compete Clauses Used in Employment Contracts (Dec. 23, 2019), 

https://www.regulations.gov/document?D=FTC-2019-0093-0004. 

10 Press Release, New York Attorney General, AG Underwood Announces Settlement with WeWork to End the Use 

of Overly Broad Non-Competes that Restricted Workers’ Ability To Take New Jobs (September 18, 2018), 

https://ag.ny.gov/press-release/2018/ag-underwood-announces-settlement-wework-end-use-overly-broad-noncompetes. 

11 MADIGAN & FLANAGAN, supra note 7. 

12 Starr, Prescott, & Bishara, supra note 3; Marx, supra note 3. 

13 MATT MARX, REFORMING NON-COMPETES TO SUPPORT WORKERS (2018), https://www.brookings.edu/wpcontent/uploads/2018/02/es_2272018_reforming_noncompetes_support_workers_marx_policy_proposal.pdf.

14 Jared Bennet, “Money and Greed”: How Non-compete Clauses Force Workers to Fight for Rights, GUARDIAN

(October 24, 2018), https://www.theguardian.com/us-news/2018/oct/24/non-compete-clause-low-wage-workerslawsuits-rights. 

15 Steven Greenhouse, Non-Compete Clauses Increasingly Pop Up in Array of Jobs, N.Y. TIMES (June 9, 2014), 

https://www.nytimes.com/2014/06/09/business/noncompete-clauses-increasingly-pop-up-in-array-of-jobs.html. 

16 Conor Dougherty, How Noncompete Clauses Keep Workers Locked In, N.Y. TIMES (May 13, 2017), 

https://www.nytimes.com/2017/05/13/business/noncompete-clauses.html. 

17 Press Release, Illinois Attorney General, Attorney General Madigan Reaches Settlement with National Payday 

Lender for Imposing Unlawful Non-Compete Agreements (Jan. 7, 2019),

http://www.illinoisattorneygeneral.gov/pressroom/2019_01/20190107b.html. 

18 Press Release, Washington Attorney General, Attorney General Bob Ferguson Stops King County Coffee Shop 

Practice Requiring Baristas to Sign Unfair Non-Compete Agreements (October 29, 2019), 
5

interns.19 As Professor Lobel mentioned earlier, disturbing statistics show that non-compete 

restrictions may disproportionately harm women, who tend to have less geographic mobility and 

are often less likely to negotiate employment terms.20

Non-competes have been found to impact wages as well as job mobility. A study of an Oregon 

ban on non-competes for low-wage workers found that relative to control states, the non-compete 

ban increased average hourly workers’ wages by 2–3%, rising to 6% five years after the ban was 

implemented. The study also confirmed the relationship to job mobility, finding that the Oregon 

ban raised job-to-job mobility and increased the proportion of salaried workers without affecting 

hours worked.21 Finally, it found that female workers in occupations where non-compete 

provisions are more common benefited more from the ban.22

In addition to harming workers, non-competes can also harm consumers. Take the example of 

home healthcare aides, where non-competes have become common in contracts between aids and 

healthcare staffing agencies. A long-time healthcare aide wanted to switch agencies to follow a 

client, but the employer threatened to sue the aide for $4,000 for violating the non-compete 

provision. The company relented only when the client wrote a letter in support of the home 

health aide’s transition to the new company.23

Physicians are also increasingly being subject to non-competes, which means patients can lose 

their long-time and preferred doctors. According to one survey, approximately 45 percent of 

primary care physicians are subject to a restrictive covenant that prohibits them from taking 

patients to a new competing practice.24 With hospital consolidation continuing and more 

physicians becoming employees of large health care systems, this may result in greater 

bargaining leverage for the hospital systems and less bargaining leverage for physicians and 

other healthcare providers to fairly bargain over the non-compete clause.

25 One of the public 

comments filed for this proceeding emphasizes this concern on behalf of both patients and 

 

https://www.atg.wa.gov/news/news-releases/attorney-general-bob-ferguson-stops-king-county-coffee-shop-spractice-requiring. 

19 Harriet Torry, Interns’ Job Prospects Constrained by Noncompete Agreements, WALL ST. J. (June 29, 2019), 

https://www.wsj.com/articles/interns-job-prospects-constrained-by-noncompete-agreements-11561800600; John V. 

Berry, Legal Insider: States Start Non-Compete Agreement Reform, ARLNOW (Aug. 12, 2019), 

https://www.arlnow.com/2019/08/12/legal-insider-states-start-non-compete-agreement-reform/. 

20 Orly Lobel, Non-Competes, Human Capital Policy & Regional Competition, J. CORP. L. (forthcoming 2020), 

https://ssrn.com/abstract=3473186. 

21 Michael Lipsitz & Evan Starr, Low-Wage Workers and the Enforceability of Non-Compete Agreements

(December 9, 2019), https://ssrn.com/abstract=3452240.

22 Lobel, supra note 19.

23 Bennet, supra note 13.

24 Kurt Lavetti, Carol Simon, & William D. White, The Impacts of Restricting Mobility of Skilled Service Workers: 

Evidence from Physicians, J. HUM. RESOURCES (February 7, 2019) (published online before print), 

http://kurtlavetti.com/UIPNC_vf.pdf. 

25 Remarks of Commissioner Rebecca Kelly Slaughter, Antitrust and Health Care Providers: Policies to Promote 

Competition and Protect Patients, Antitrust and Health Care Providers Policies to Promote Competition and Protect 

Patients Center for American Progress (May 14, 2019), 

https://www.ftc.gov/system/files/documents/public_statements/1520570/slaughter_-_hospital_speech_5-14-19.pdf; 

see also Elena Praeger & Matthew Schmidt, Employer Consolidation and Wages: Evidence from Hospitals. (May 7, 

2019), https://ssrn.com/abstract=3391889. 
6

doctors.26 While some argue that they serve a legitimate business interest, this raises the question 

of whether such a business interest is being promoted at the expense of patients.

Addressing Non-Competes and Other Labor Competition Issues

A handful of states have exhibited great leadership in enforcing against unjust non-compete 

restrictions and legislating to limit their usage and enforcement. This is significant and important 

work, but it is still only a patchwork solution to a problem that is rampant throughout much of 

the country. 

Proposed federal legislation, particularly the bill introduced by Senators Murphy and Young, is a 

positive development, but we need not wait for legislation to tackle this issue head-on. 

The workshop we are having today is a valuable mechanism for the FTC to gather information 

and learn more about the impact non-compete provisions have on firms, workers, and the 

economy. But information gathering should not be the end of this exercise; we should also take 

action.

Without prejudging the outcome of a rulemaking proceeding on non-competes, I strongly 

support the FTC’s undertaking such an endeavor. And I want to acknowledge and express 

gratitude to Commissioner Chopra for his white-paper calling for the FTC to take advantage of 

our statutory authority to engage in rulemaking on unfair methods of competition.27 I also want 

to credit the many advocacy groups who came together to petition the Commission to undertake 

a non-compete rulemaking specifically. 

I want to conclude my remarks by mentioning a few other ways I believe the Commission should 

increase its focus on workers beyond a rulemaking process on non-competes. We should also 

give consideration to a rulemaking on no-poach agreements between franchises and their 

franchisees that unduly hamper the competitive marketplace for workers’ labor. And it is worth 

considering whether other contracting terms applied to workers (such as mandatory arbitration 

requirements) may be appropriate subjects for rulemaking. 

In addition, labor market concentration ought to be a greater focus in merger review. I am 

pleased that the Chairman and the leadership of the Bureau of Competition have acknowledged 

the potential for labor monopsony concerns in mergers and I am hopeful that such theories of 

harm will increasingly be considered as part of our merger review.28 Similarly, the Commission 

should make it a priority to examine and investigate other conduct and potential restraints that 

may be inhibiting competition for labor. 

 

26 Francisco Almeida, Public Comment on FTC’s Workshop on Non-Compete Clauses Used in Employment 

Contracts (Dec. 11, 2019), https://www.regulations.gov/document?D=FTC-2019-0093-0002. 

27 Rohit Chopra, Comm’r, Fed. Trade Comm’n, Comment on Hearing #1 on Competition and Consumer Protection 

in the 21st Century (September 6, 2018), 

https://www.ftc.gov/system/files/documents/public_statements/1408196/chopra_-_comment_to_hearing_1_9-6-

18.pdf. See also Section 6(g) of the FTC Act, 15 U.S.C. 46(g) (2018) (authorizing the Commission to issue 

regulations to carry out its authority to define unfair methods of competition that are prohibited by Section 5).

28 Pallavi Guniganti, FTC Will Look at Labour Monopsony, Hoffman Says, GLOBAL COMPETITION REV. (June 8, 

2018), https://globalcompetitionreview.com/article/usa/1170360/ftc-will-look-at-labour-monopsony-hoffman-says
7

Finally, I share the concern that has been expressed by many labor law experts about the 

misclassification of gig economy and other workers as independent contractors.29 Classifying 

workers as independent contractors allows firms to avoid the obligations and requirements 

associated with treating these workers as employees while insulating the firms from the labor 

protections and rights afforded to employees to collectively bargain. I think that workers who fall 

into those categories should at a minimum have the benefit of the antitrust exemption for labor 

organizing. While I think this would be most effectively achieved through legislation, I believe 

as an intermediate step that the FTC should not use its limited resources to bring enforcement 

actions against such collective action by workers. 

I look forward to the rest of the day’s presentations and panels, and now have the pleasure of 

introducing our next speaker, Ryan Nunn. 

 

29 Paul Sanjukta, The Enduring Ambiguities of Antitrust Liability for Worker Collective Action, LOY. U. CHICAGO 

L.J. 969 (2016), https://docs.house.gov/meetings/JU/JU05/20191029/110152/HHRG-116-JU05-Wstate-PaulS20191029-SD002.pdf.