Document Type

Article

Publication Date

2026

Publication Title

Berkeley Journal of Employment and Labor Law

Keywords

Federal Trade Commission (FTC), noncompete

Abstract

Post-employment non-competition agreements (“noncompetes”) have been part of the common law dating back to at least 1414. The past 16 years have seen an unprecedented wave of scrutiny that is mostly aimed at curtailing these agreements, culminating in the contentious 2024 Federal Trade Commission’s (FTC) attempted noncompete ban. With the broad FTC ban on hold for the foreseeable future, the spotlight shifts back to the states where innovation in noncompete policy is blossoming. In this study, we systematically explore the legislative and policy trends reshaping the U.S. noncompete landscape. We propose a novel typology of these reforms and apply a theory of policy diffusion to explain the rapid spread of ideas across disparate jurisdictions, regulatory agencies, and in the consciousness of workers and policy makers. Our comprehensive analysis reveals a notable surge in state-level legislative activity since 2015, with 95 percent of reforms occurring in the last decade, including some states with multiple rounds of reform. Strikingly, 33 percent of these changes were enacted on a bipartisan basis. We provide the first evidence of noncompetes as an example of policy diffusion and argue that, despite the stalled FTC ban, these legislative changes are a potential harbinger of future legal reforms related to employee fairness and human capital–focused competition.

DOI

https://doi.org/10.15779/Z38N00ZW9B

Volume

47

Issue

2

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