Corporate America Braces for Seismic Shift as FTC’s Noncompete Ban Kicks In

In a groundbreaking move that could reshape the dynamics of the American workforce, the Federal Trade Commission has fired a shot across the bow of Corporate America by enacting a near-total ban on noncompete agreements. The new regulation promises to upend long-standing business practices and trigger sweeping ramifications for companies, investors, and millions of workers.

On Tuesday, the FTC’s commissioners voted 3-1 to prohibit employers from imposing noncompete clauses that restrict workers from leaving for a rival firm. The ban applies not only to future contracts but also requires companies to nullify existing noncompete agreements, with few exceptions allowed for some highly-paid executives.

The rationale, according to the FTC, is that such clauses suppress wages, hamper innovation, and deprive workers of economic freedoms by limiting their career mobility and ability to pursue better opportunities. It’s an expansive assertion of regulatory power spotlighting the Biden administration’s pro-labor policy agenda.

“Companies with extraordinary leverage over employees shouldn’t be able to squeeze Americans with noncompetes that are often offered on a take-it-or-leave-it basis,” FTC Chair Lina Khan declared. “Today’s vote helps restore workers’ countervailing bargaining power and freedom of mobility.”

But the new edict is already facing a backlash from powerful business groups like the U.S. Chamber of Commerce, which have accused the FTC of overstepping its legal authority. Within 24 hours, they filed a federal lawsuit seeking to block the “staggeringly overbroad” ban.

“This represents a startling regulatory overreach and stretches the FTC’s authority far beyond what Congress could ever have intended,” said Jeffrey Shapiro, a noncompete law expert at FCW Partners. “It will likely be bogged down in the courts for years.”

If the ban withstands the expected legal challenges, experts say the ripple effects could be seismic across a wide range of industries that have long leveraged noncompete clauses to protect trade secrets and retain top talent:

Tech Giants Face Talent Drain
Major tech hubs like Silicon Valley, Seattle and Austin could see a free-for-all in the battle for engineering and product talent no longer restricted by noncompete strictures. This could accelerate attrition at the FAANG companies and disrupt the aggressive recruiting tactics they’ve leaned on to poach stars. Public tech stock valuations may have to be reevaluated.

Manufacturing Risks Rise
Automakers and aerospace manufacturers that have stringently guarded R&D and intellectual property using noncompetes worry about a brain drain to rivals or upstart competitors. Smaller industrial firms may have to rethink business strategies if they can no longer tie down key personnel.

Healthcare Industry Upheaval
The healthcare industry, notorious for its aggressive use of noncompete language, could be turned upside down. Major hospital systems and staffing firms may struggle to retain nurses, doctors and specialists who can now seamlessly jump ship to competing practices or startups. Costs may spike for replacing those who exit.

While noncompete agreements faced growing restrictions in several states, the FTC’s action goes much further in seeking to eliminate them nationwide outside of very narrow circumstances. The resulting purge could catalyze significant workforce churn across the corporate landscape.

“Employers, investors and the markets have to prepare for severe disruption if this ban sticks,” said Eric Sibbitt, CEO of data analytics firm O*NET OnLine. “Holding onto your most valuable human capital will become exponentially harder.”

Whether it triggers an unleashing of professional talent or catastrophic defections of prized workers will be the multi-billion dollar question facing Corporate America. Buckle up for a brave new world of unrestricted job-hopping.

Will Defining Current Laws to Fit AI, Artificially Stifle its Growth

The Legal Problems AI Now Creates Should Pave the Way to a Robust Industry

Is artificial intelligence, or more specifically OpenAI a risk to public safety? Can ChatGPT be ruining reputations with false statements? The Federal Trade Commission (FTC) sent a 20-page demand for records this week to OpenAI to answer questions and address risks related to its AI models. The agency is investigating whether the company engaged in unfair or deceptive practices that resulted in “reputational harm” to consumers. The results could set the stage defining the place artificial intelligence will occupy in the US.

Background

The FTC investigation into OpenAI began on March 2023. It resulted from a complaint from the Center for AI and Digital Policy (CAIDP). The complaint alleged that OpenAI’s ChatGPT-4 product violated Section 5 of the FTC Act. Section 5 prohibits unfair and deceptive trade practices. More specifically, CAIDP argues that ChatGPT-4 is biased, deceptive, and a risk to public safety.

The complaint cited a number of concerns about ChatGPT-4, including:

  • The model’s potential to generate harmful or offensive content.
  • The model’s tendency to make up facts that are not true.
  • The model’s lack of transparency and accountability.

The CAIDP also argued that OpenAI had not done enough to mitigate these risks. The complaint called on the FTC to investigate OpenAI and to take action to ensure that ChatGPT-4 is not used in a harmful way. The FTC has not yet made any public statements about the investigation. OpenAI has not commented publicly on the investigation.

It is not clear what action, if any, the FTC can or will take.

Negligence?

With few exceptions, companies are responsible for the harm done by their products when used correctly. One of the questions the FTC asked has to do with steps OpenAI has taken to address the potential for its products to “generate statements about real individuals that are false, misleading, or disparaging.” The outcome of this investigation, including any regulation could set the tone and define where responsibility lies regarding artificial intelligence.

As the race to develop more powerful AI services accelerates, regulatory scrutiny of the technology that could upend the way societies and businesses operate is growing. What is difficult is computer use generally isn’t isolated to a country, the internet extends far beyond borders. Global regulators are aiming to apply existing rules covering subjects from copyright and data privacy to the issues of data fed into models and the content they produce.

Legal Minefield

In a related story out this week, Comedian Sarah Silverman and two authors are suing Meta and OpenAI, alleging the companies’ AI language models were trained on copyrighted materials from their books without their knowledge or consent.

The copyright lawsuits against the ChatGPT parent and the Facebook parent were filed in a San Francisco federal court on Friday. Both suits are seeking class action status. Silverman, the author of “The Bedwetter,” is joined in her legal filing by authors Christopher Golden and Richard Kadrey.

Unlike the FTC complaint, the authors’ copyright suits may set a precedent on intelligence aggregation. The sudden birth of AI tools that have the ability to generate written work in response to user prompts was “taught” using real life work. The large language models at work behind the scenes of these tools are trained on immense quantities of online data. The training practice has raised accusations that these models may be pulling from copyrighted works without permission – most worrisome, these works could ultimately be served to train tools that upend the livelihoods of creatives.

Take Away

Investing in a promising new technology often means exposing oneself to a not yet settled legal framework. As the technology progresses, the early birds investing in relatively young and small companies may find they hold the next mega-cap company. Or, regulation may limit, to the point of stifling, the kind of growth experienced by Amazon and Apple a few short decades ago.

If AI follows the path of other technologies, well-defined boundaries, and regulations will give companies the confidence they need to invest capital in the technology’s future, and investors will be more confident in providing that capital.

The playing field is being created while the game is being played. Perhaps if the FTC has a list of 20 questions for OpenAI in ten years, it will just type them into ChatGPT and get a response in 20 seconds.

Paul Hoffman

Managing Editor, Channelchek

https://www.ftc.gov/news-events/news/press-releases/2022/06/ftc-report-warns-about-using-artificial-intelligence-combat-online-problems

https://www.reuters.com/technology/us-ftc-opens-investigation-into-openai-washington-post-2023-07-13/