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The End of Non-Competes? The Impact It Will Have on the Healthcare Industry

Client Alert
January 10, 2023

A. Overview

On January 5, 2023, the Federal Trade Commission (“FTC”) announced a proposed rule that, if enacted, will ban employers from entering into non-compete clauses with workers (the “Rule”), and the Rule would void existing non-compete agreements. In their Notice, the FTC stated that if the Rule were to go into effect, they estimate the overall earnings of employees in the United States could increase by $250 billion to $296 billion per year.[1] The Rule would also require employers to rescind non-competes that they had already entered into with their workers.[2] For purposes of the Rule, the FTC has defined “worker” to also include any employees, interns, volunteers, and contractors.”[3]

B. Providers

This proposed Rule would have a profound effect on the healthcare industry, as many providers, such as physicians, nurse practitioners, and physician assistants have entered into non-competes with their employers, restricting them from working within a certain proximity to their previous employers, usually for a set amount of time following their employment. The rule would also rescind this restrictive covenant that many providers have already entered into with their employers.

While the rule would undoubtedly benefit providers, and even potentially patients, by not restricting where providers can practice, the rule may present difficulties to health systems, including hospitals and clinics, particularly in areas where it is a struggle to find and/or retain healthcare workers, particularly physicians.[4]

The FTC has asked the public to submit comments on the Rule, which will be due sixty (60) days after the Rule is published in the Federal Register.[5]

C. Other Employers

BMD’s employment attorney, Bryan Meek, will be publishing a new podcast episode on his YouTube channel, Employment Law After Hours, during the week of January 9th further discussing these proposed FTC rules and the possible implications on the industry.

If you have any questions regarding this proposed rule or would like to discuss submitting a public comment to the FTC regarding this proposal, please do not hesitate to contact:

[1] Federal Trade Commission, Non-Compete Clause Rulemaking, https://www.ftc.gov/legal-library/browse/federal-register-notices/non-compete-clause-rulemaking (Jan. 5, 2023).

[2] Id.

[3] Id.

[4] Association of American Medical Colleges, “New AAMC Report Confirms Growing Physician Shortage,” https://www.aamc.org/news-insights/press-releases/new-aamc-report-confirms-growing-physician-shortage (June 26, 2020).

[5] Non-Compete Rulemaking.

non-competesHealthcareJeana SingletonBryan MeekAdam D. FullerRachel Stermer
Client Alert

Returning to Work: Forecasting the New Normal in Business

April 16, 2020We cannot predict when businesses will reopen across the county. As we publish this Alert, dynamic business leaders are cooperating in comprehensive efforts to create safe work environments so that they can all re-engage the workforce. However, we can predict the new normal in business. Some important studies were published yesterday, and the new normal in business will be facemasks for all employees, and probably all business visitors.Client Alert

Updated Guidance on Ohio Department of Medicaid Telehealth Rules During the Covid-19 Public Health Emergency

April 15, 2020In its initial response to the COVID-19 public health emergency, the Ohio Department of Medicaid (“ODM”) issued emergency rule 5160-1-21, which dramatically expanded reimbursable telehealth services, telehealth providers, allowable technology, location of both providers and patients, and covered billing provider types. See BMD’s initial COVID-19 and Telehealth Resource Guide here. This emergency rule provides wide flexibility for patients to receive necessary healthcare services while Ohio’s Stay-At-Home Order remains in place. Regulations are continually changing in response to the public health crisis, and on April 13, 2020, ODM issued new guidance further expanding telehealth services reimbursable under Ohio’s Medicaid program.Client Alert

Essential Businesses during COVID-19: Identification and Operation FAQs

April 14, 2020During the COVID-19 pandemic, the ability to classify your business as “essential” could be the key to its survival. Almost every state in the United States has imposed a “stay-at-home” or “shelter-in-place” order that restricts the types of businesses that can remain open. In fact, as of the writing of this alert, there are only seven states that have not imposed state-wide restrictions on which businesses can stay open during the Coronavirus pandemic and even those states have individual cities and counties that have imposed stricter orders. However, these orders are not always clear, and interpretation is often left to the individual business. This alert will answer some of the most common questions about essential businesses.Client Alert

UPDATE: Exempt Organizations Filing Deadline Extended Until July 15, 2020

April 13, 2020In a recent announcement, the IRS has expanded the deadline for any taxpayers, whether individuals, trusts, estates, corporations, and other non-corporate tax filers, where a filing or payment deadline falls on or after April 1, 2020 and before July 15, 2020. These taxpayers now have until July 15, 2020 to file and pay any federal income tax that is generally due on April 15. The IRS will not assess any late-filing penalty, late-payment penalty, or interest.Client Alert

New IRS Portal for Non-filing Taxpayers to Enter Payment Information & Receive Economic Impact Payments

April 13, 2020The IRS has created a portal for non-filers to enter payment information in order to receive the economic impact payments. This portal is for taxpayer’s who have gross income that does not exceed $12,200 if single and $24,400 if married filing jointly, or were not otherwise required, or plan, to file a tax return for 2019.
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