H. R. 5631
IN THE HOUSE OF REPRESENTATIVES
April 26, 2018
Mr. Crowley (for himself, Ms. Sánchez, Mr. Pocan, Mr. Ellison, Mr. Nadler, and Mr. Cicilline) introduced the following bill; which was referred to the Committee on the Judiciary, and in addition to the Committee on Education and the Workforce, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned
To prohibit employers from requiring employees to enter into covenants not to compete, and for other purposes.
This Act may be cited as the
Workforce Mobility Act of 2018.
Prohibiting covenants not to compete
No employer shall enter into a covenant not to compete with any employee of such employer, who in any workweek is engaged in commerce or in the production of goods for commerce (or is employed in an enterprise engaged in commerce or in the production of goods for commerce).
Presumption of illegality of covenants not to compete in employment contracts
A covenant not to compete contained in an employment contract made between an employer and an employee is anticompetitive and violates the antitrust laws unless the employer establishes by a preponderance of the evidence that the covenant does not have an anticompetitive effect or that the pro-competitive effects outweigh the anticompetitive harm.
Private right of action
Any person who fails to comply with section 2 shall be liable to any individual in an amount equal to the sum of—
any actual damages sustained by the individual as a result of the failure;
such amount of punitive damages as the court may allow; and
in the case of any successful action to enforce any liability under this subsection, the costs of the action together with reasonable attorney’s fees as determined by the court.
Any person may bring a civil action under subsection (a) in any appropriate district court of the United States.
Nothing in this Act shall preclude an employer from entering into an agreement with an employee to not share any information (including after the employee is no longer employed by the employer) regarding the employer or the employment that is a trade secret as defined in section 1839 of title 18 of the United States Code.
For purposes of this Act:
The term ‘‘antitrust laws’’ shall have the meaning given such term in subsection (a) of the first section of the Clayton Act (15 U.S.C. 12), except that such term shall include section 5 of the Federal Trade Commission Act (15 U.S.C. 45) to the extent that such subsection applies to unfair methods of competition.
The term commerce has the meaning given such term in section 3 of the Fair Labor Standards Act of 1938 (29 U.S.C. 203).
Covenant not to compete
The term covenant not to compete means an agreement between an employer and an employee that restricts such employee from performing—
any work for another employer for a specified period of time;
any work in a specified geographical area; or
any work for another employer that is similar to such employee's work for the employer that is a party to such agreement.
The term employee has the meaning given such term in section 3 of the Fair Labor Standards Act of 1938 (29 U.S.C. 203).
employer has the meaning given such term in section 3 of the Fair Labor Standards Act of 1938 (29 U.S.C. 203).
The term State means any of the several States or the District of Columbia.