Courts have already put on hold Biden Administration rules banning noncompete agreements and making more workers eligible for overtime pay.
This year saw not one but two major employment law rules move forward—one banning noncompete agreements for most workers, the other expanding white collar workers’ eligibility for overtime—only for both to get stalled in the courts before ever going fully into effect. But whether Kamala Harris or Donald Trump wins Tuesday is likely to have little immediate impact on either one; longer term, the election ultimately will have consequences.
In April, the Federal Trade Commission voted to approve a landmark rule that most new noncompete agreements would be barred, but it was immediately met with lawsuits that have kept it from being implemented. That same month, the U.S. Department of Labor issued a final rule raising the salary threshold at which white collar employees can be exempt from overtime pay. It went partially into effect, but was also stymied by legal challenges that may prevent a higher increase from happening Jan. 1.
In the near-term, whoever wins the election can’t reverse the legal obstacles that both measures face. And even if the legal challenges fail, it could take time for the fate of either to be known. There hasn’t been much talk of legislative activity on either issue.
“Unless the 119th Congress is aligned with the new administration, we are in a divided government and there’s going to be federal legislative gridlock for the next four years,” says Shannon Meade, executive director of law firm Littler Mendelson’s Workplace Policy Institute.
The fate of the noncompete ban appears a little more clear. “Many folks thought the FTC was quite a ways out over their skis in issuing the rule that they did,” says James A. Paretti, Jr., a Littler attorney and former EEOC senior counsel. “Noncompetes are older than the United States. They literally came over with the English common law.
