Guy Brenner: Well, there are a few things employers can do now. First, the law has no retroactive effect, so employers can continue to enter into non-compete obligations until 1 April. D.C. Employers should consider expanding the circle of workers subject to such agreements or whether they should implement non-compete obligations if they have not done so in the past. You really have a limited time window to do this. Second, D.C employers may want to review their confidentiality and non-solicitation agreements to determine whether they can or should be strengthened in anticipation of the world in which their employees will be free to work for others while working for them. Third, employers should review their policies and determine whether they prohibit concurrent employment and, if so, plan to amend them by April 1, 2022. In addition to being aware of anti-undeclared work policies, codes of conduct and ethical codes, conflict of interest guidelines, these types of policies generally have restrictions on simultaneous employment, and these are the ones that D.C employers. Finally, employers may wish to consider other agreements that discourage competition without prohibiting it. Thus, the law actually uses the word « prohibit » with respect to the restriction that employers are not allowed to impose on their employees. We`ve developed creative options for employers, and employers you know should consider whether there are other ways to comply with the law while protecting their legitimate interests. Arguably, an exception for non-solicitation agreements is not necessary.

The reasoning would be that an employee`s agreement not to recruit clients or employees of his employer does not « restrict or prevent » the employee, by its very nature. are employed by another employer » either in « a specific geographic area or « [e]ny or an indeterminate or specific period ». Nevertheless, as with any new legislation, there will inevitably be disputes over the intended scope of the bill. By not including an explicit exclusion for non-consolidation agreements in the bill, as massachusetts and Washington state lawmakers have done, Council D.C could leave the door open to litigation on the issue. Admittedly, the additional clarity of an exception for non-consolidation agreements would be welcomed by employers and could avoid a certain degree of litigation over the interpretation of the legislation. Council member Brooke Pinto proposed to restrict the law to allow for targeted non-compete obligations for certain categories of workers. First, under the Pinto proposal, a worker with broad access to confidential information could be barred from working without declaration if that simultaneous employment resulted in the disclosure or use of confidential information by a competitor, and employers could prohibit undeclared work to workers who are clearly identified with their employer or brand. Second, the Pinto proposal would allow the use of a non-compete clause for employees earning more than $80,000 per year, provided that the non-compete obligation is limited to six months or less.

However, employers would be required to pay full wages for six months for an employee if the non-compete clause completely discourages the employee from employment (capped at $150,000 less a signing bonus). In addition, the proposed amendment would clarify that employers may prohibit the use of confidential, proprietary or sensitive information, including customer lists, customer lists or trade secrets, during or after the employee`s employment with the employer, in addition to disclosure. [1] (1) The non-compete obligation proposed directly to the specialist at least 14 days before the conclusion of the agreement containing the provision; and the removal of the law`s definition of a « non-compete obligation » raises concerns that go beyond the non-compete obligations per se. To address these consequences (intentional or unintentional), employers should consider reviewing employment contracts that provide for exclusive employment or that require managers to devote their « full time and attention » to their work. Employers may also consider reviewing policies that prohibit conflict of interest or prohibit employees from performing work that requires them to use or disclose sensitive information. Deferred compensation or equity agreements that terminate performance or acquisition in the event that an employee works for a competitor may also justify consideration. The bill can be interpreted as prohibiting a wider range of restrictive agreements than employers might consider to be classic non-compete obligations. The bill generally states that employers cannot require or require their employees to be « (1) [b]eing employed by another person; (2) The provision of work or services for remuneration to another person; or (3) [o]take care of his own business. While the bill states that employers will continue to be able to protect their confidential, proprietary or sensitive information (including customer lists, customer lists, and trade secrets), it does not explicitly include non-solicitation provisions. .