Garen Dodge Quoted in “DC Noncompete Ban Joins Wave of Low-Wage Protections”

Law360 Employment Authority

Garen E. Dodge, Member of the Firm in the Employment, Labor & Workforce Management practice, in the firm’s Washington, DC, office, was quoted in Law360 Employment Authority, in “DC Noncompete Ban Joins Wave of Low-Wage Protections,” by Mike LaSusa. (Read the full version – subscription required.)

Following is an excerpt:

Washington, D.C.'s recent passage of a broad ban on noncompete agreements adds to a wave of similar protections aimed at low-wage workers that have been implemented in other jurisdictions in recent years, spurring employment attorneys to predict the trend to continue. …

What's more, the New York City Bar Association recently urged state lawmakers to ban noncompetes for lower-salary employees who don't have access to an employer's sensitive technology or information. And President Joe Biden has called for a similar, nationwide ban on such agreements.

Here, Law360 takes a look at how D.C.'s new law fits into the current legal landscape surrounding noncompete agreements, and what might be in store in the future.

What DC's Law Says

D.C.'s ban on noncompete agreements, which went into effect March 16, covers nearly all workers, except medical specialists making more than $250,000 per year. That makes it more expansive than its neighbors' similar laws, which apply specifically to low-wage workers. …

Unlike its neighbors, D.C. also banned anti-moonlighting agreements that prohibit workers from taking a second job with another employer, said Garen Dodge, a D.C.-based member at management-side firm Epstein Becker Green.

"That's unique and that's kind of unexamined in the courts," Dodge said. "It'll be interesting to see how that plays out." …

Nationwide Momentum? …

Biden has said he wants to outlaw all noncompete agreements, except a small slice aimed at protecting trade secrets. And while the odds of passing a federal ban are unclear, the recent spate of state-level laws suggests momentum might exist for further local legislation, Dodge said.

"It's kind of a trend that's been picking up in the last couple of years," he said. …

Room to Maneuver

Even in jurisdictions like Washington, D.C., that have strict noncompete bans, employers can still restrain employees from divulging sensitive business details as long as those agreements stop short of barring a worker from taking a job at a competitor, attorneys said. …

Employers can also use nonsolicitation agreements, which typically prevent ex-employees from trying to woo their former co-workers or former clients to a new business, Dodge said.

"There are things that employers still can do with lower-wage employees that aren't an outright ban on them from working for an employer in a similar industry," he said.