Brendan Mohan

Document Type



This article analyzes the implications of President Biden's Executive Order 14036 and the subsequent notice of proposed rulemaking (NPRM) by the Federal Trade Commission (FTC) to ban non-compete agreements. It examines the legal basis for the NPRM, including Sections 5 and 6(g) of the FTC Act, and anticipates potential challenges to its implementation, most notably under the major questions doctrine. It explores the broader ramifications of the NPRM for labor and employment law, emphasizing its potential to reshape administrative agency regulation and the regulatory landscape. It concludes by analyzing the rule under the major questions doctrine and the possible outcomes of a challenge to the rule in its current form, which have the potential to fundamentally alter the current labor and employment law landscape and redefine the role of administrative agencies.

*This article was awarded first prize in the 2023 Dr. Emanuel Stein and Kenneth Stein Memorial Law Student Writing Competition by the New York State Bar Association’s Labor and Employment Law Section.