There is an oversimplified view in the press and on social media that non-competes are bad—very bad—and that employers are far too aggressive in enforcing them. These opinions understandably flow from reports of non-competition clauses abusively enforced against low-wage employees such as sandwich makers and dog sitters. To fix this “problem,” a group of Democratic Senators has introduced the Workforce Mobility Act of 2018 (the WMA) (Senate Bill 2782, with an identical version in the House at H.R. 5631).

Unfortunately, the WMA attacks with buckshot, imposing a flat ban on all covenants not to compete for all U.S. employers and employees engaged in “commerce.” The approach is overbroad, and fails to account for different kinds of employees or different types of restrictions. While there are valid objections to non-competes restricting low-level employees, the more traditional use of non-competes to protect businesses are still appropriate and should not be eliminated. Moreover, the WMA leaves many open questions that could result in further litigation for years to come.