The Federal Trade Commission (FTC) recently proposed a new rule that would ban the use of noncompete clauses in employment contracts. This proposal has the potential to have a significant impact on the way businesses operate and protect their confidential information and trade secrets.  Although this rule is not yet in effect and in the comment stage, if the proposed rule is adopted there will be implications for both companies and employees.
 
What are Noncompete Clauses?
 
Noncompete clauses are agreements between an employer and employee that prohibit the employee from working for a competitor for a specified period of time after leaving the company. These clauses are often used by companies to protect their confidential information, trade secrets, and other valuable assets. They are common in industries such as tech, finance, and consulting, where employees have access to valuable company information and relationships.
 
Why is the FTC Proposing a Ban on Noncompete Clauses?
 
The FTC is proposing a ban on noncompete clauses due to concerns that they restrict competition and limit employee mobility. The Commission believes that noncompete clauses stifle innovation and limit consumer choice, as they prevent employees from using their skills and knowledge to benefit other companies and create new products and services. Additionally, noncompete clauses can limit the ability of employees to negotiate better wages and benefits, as they are often afraid to leave their current employer for fear of violating the noncompete clause.
 
What are the Implications of the Proposed Rule?
 
If the proposed rule is adopted, it would have a significant impact on businesses that currently use noncompete clauses in their employment contracts. Companies would need to revise their contracts and find alternative ways to protect their confidential information and trade secrets. They may need to rely on other forms of protection, such as confidentiality agreements, and existing law related to trade secrets.
 
Employees would also be impacted by the proposed rule. They would have more freedom to move between companies and use their skills and knowledge to benefit other businesses. This could lead to increased competition, which could benefit consumers by leading to lower prices and increased innovation.
 
Conclusion
 
The FTC's proposed ban on noncompete clauses is a significant development in the world of employment law. If the rule is adopted, it could have a significant impact on the way companies protect their confidential information and trade secrets, and the way employees use their skills and knowledge. Businesses and employees should stay informed about the proposed rule and its potential implications, and seek the guidance of a qualified attorney if they have questions.

The recent New Jersey Appellate Court decision in the case of JPC Merger Sub LLC vs. Tricon Enterprises, Inc. (A-2893-21), has shed light on the enforceability of "pay if paid" provisions in the state. In this case, Tricon sought to enforce a "pay if paid" provision contained in a subcontract with JPC. This provision stated that Tricon's obligations to pay JPC would only be enforceable if Tricon had received payment from the owner of the project.

The court determined that the "pay if paid" provision was enforceable and that Tricon was obligated to make payments to JPC if and only if Tricon received payment from the third party. The court found that the provision was clear and unambiguous and did not contravene any public policy.  The court stated, "we believe that a prohibition against the use of pay-if-paid provisions as conditions precedent in construction contracts should come from the legislature rather than the courts.  Thus, we hold that as long as the contract specifies a clear and unambiguous intent and agreement by the parties to shift the risk of nonpayment, a pay-if-paid provision is enforceable subject to the parties' implied duty to not frustrate conditions precedent to their performance."  This decision reinforces the principle that clear and unambiguous language in contracts is key and will be given weight by the courts in New Jersey.

In conclusion, after the JPC v. Tricon case, it appears that "pay if paid" provisions in New Jersey are enforceable, as long as they are clear and unambiguous. This decision serves as a reminder to parties entering into contracts in New Jersey to ensure that their agreements are clear and unambiguous, to avoid any disputes over enforceability in the future.