Erik W. Weibust, Member of the Firm in the Litigation & Business Disputes and Employment, Labor & Workforce Management practices, was featured in IAM Trade Secrets in “Boston Trade Secrets Litigator on How Companies Should Respond as Non-Competes Lose Ground,” by Maia Biermann. (Read the full version – subscription required.)
Following is an excerpt:
A Boston-based litigator known for securing injunctive relief and high-value settlements across sectors, he advises companies on how to protect trade secrets as traditional restraints fall away, and how to litigate where those restraints remain in force.
In this interview, he assesses the growing patchwork of state reforms and the rising stakes for employers managing employee exits and competitive hiring in real time. The interview has been edited for clarity, brevity and IAM style.
Q: With Virginia tightening its approach to non-compete clauses and states like Washington going even further, what do diverging reforms mean for trade secret protection – and what “plan B” steps should employers take?
A: Although the courts soundly rejected the Federal Trade Commission’s effort to ban non-competes, the FTC’s attempt has had a secondary effect of causing more states to consider outright bans and to actually impose them as opposed to simply enacting compromise legislation.
Minnesota and Washington have both banned non-competes outright in the past few years, but they are the only two states to have done so in over 100 years, though more may follow.
Many states like Virginia have passed compromise legislation over the past decade or so, limiting the enforceability of non-competes against low-wage workers, in certain industries (healthcare being the most prominent), and providing certain due process protections for employees (notice, right to counsel, et cetera), but not banning them outright.
That said, the vast majority of states still permit reasonable non-competes in most circumstances, and employers should continue using them appropriately where the law allows.
