From Airline Rules to Noncompetes, the Executive Branch Is Rising
This week, the Biden administration issued final rules to ban most noncompete clauses nationwide while requiring airlines to promptly provide cash refunds for significantly delayed or cancelled flights. The FTC and USDOT rules follow on the heels of other recent, significant federal action, including the DOJ antitrust lawsuit against Apple and the significantly increased minimum wage thresholds issued by the DOL under the FLSA.
These agency actions are a prime example of the Biden administration's willingness to use the administrative state to bypass Congress to effect policy change. And no wonder--passing a law in Congress is notoriously difficult, with an average of approximately 5.5% of filed legislation passing in each biennial Congress.
The final rules will inevitably be subject to litigation by individuals and groups under varying circumstances. Indeed, just one day after the FTC issued its final noncompete rule, the U.S. Chamber challenged the final rule in the U.S. District Court in the Eastern District of Texas.
While the Biden administration is not the first to flex the power of the administrative state, the breadth of these regulatory actions are striking. We are entering a new era where the Executive is willing to issue sweeping regulations that affect a broad swath of our market economy--and where representation before federal (and state) governments has never been more critical to protect your interests.
If your business model or interests are at risk from federal agency action or rule making, please feel to reach out to our team to discuss how we may successfully guide you through the regulatory process.