In April 2024, the Federal Trade Commission issued a final rule purporting to ban most non-contend agreements across the United States. The rule, if implemented, might have invalidated existing non-contend clauses in most employment agreements and prohibited new ones going forward, with narrow exceptions for senior executives and business sale agreements. The response from the business community was immediate and predicted: legal challenges were filed within days, and by August 2024, a federal district court in Texas had blocked the rule’s implementation pending further litigation.
By late 2025, the status of the FTC rule was still being litigated, and the actionable landscape for senior US professionals with non-contend clauses in their employment agreements was authentically different from 2023 — but not in the way the April 2024 headlines indicated.
What practically changed
Three elements shifted materially for senior US professionals with non-contend clauses between 2023 and late 2025, regardless of the federal rule’s ultimate fate:
State-level reform continued aggressively. While the federal rule was in litigation, several additional states moved to significantly restrict non-contend enforceability. By late 2025, 12 states had either banned non-competes entirely or made them unenforceable against employees below a particular income threshold that excluded most senior professionals. The state-by-state landscape had become the operative framework: where you work, where your employer is headquartered, and where the dispute would be litigated all determine which rules apply to your specific situation.
Companies pulled back on non-contend use at lower levels. The regulatory and litigation risk of maintaining broad non-contend programs motivated many major US employers to voluntarily restrict non-contend use to senior executives and executives with authentic trade secret exposure, even in states where broader use would be legally permissible. This voluntary restriction eliminated or modified non-contend clauses for many mid-level managers and technical employees who had previously been subject to them.
Enforceability scrutiny intensified. Courts across the country, even in states that nominally permit non-contend agreements, increased their willingness to limit the geographic scope, temporal duration, and breadth of activities covered. A 3-year, nationwide non-contend for a mid-level finance executive was considerably less likely to be enforced in 2025 than in 2020, even in states where the agreement was technically valid.
What’s still binding
Non-contend agreements remain legally considerable in several categories where courts have historically been most willing to enforce them:
Senior executive roles at companies with verifiable trade secrets or proprietary information. Private equity professionals, quantitative trading strategies, and senior research executives at pharmaceutical companies remain the most commonly enforced non-contend categories.
Non-competes entered as part of business sale agreements. The FTC rule expressly exempted these, and courts have historically been far more willing to enforce non-competes agreed to in connection with the sale of a business (where the seller is receiving consideration for the covenant) than non-competes in employment agreements (where the employee receives no consideration beyond continued employment).
Non-solicitation agreements remain broadly enforceable regardless of non-contend status. Even in states that have restricted non-competes, courts were protective of employer relationships with customers and employees. If you leave a company and immediately recruit your former team members or solicit former customers, you face considerable legal exposure in most US jurisdictions regardless of what has happened to non-contend law.
How to negotiate around them
For senior US professionals navigating non-competes in employment negotiations, several approaches that have turned into more available as the legal landscape has evolved:
Narrow the geographic scope to the specific markets where you’d actually contend. A nationwide non-contend for a regional insurance executive is difficult to justify; courts are more likely to enforce a limited geographic restriction that matches the true contested footprint of your role.
Reduce the temporal scope to 12 months or less. The longer the non-contend duration, the harder it is to enforce. One year is the most prevalent fully-enforceable duration; two years is defensible in some circumstances; three years is a frequent target of judicial reduction.
Request a clear definition of "contested activity." Vague definitions (“any business that competes with the company") are regularly narrowed by courts; specific definitions (limited to the specific business lines and customers you worked with) are more likely to be enforced as written but also easier to comply with.
If the agreement includes a non-contend and you have considerable leverage, request garden leave: full salary and benefits paid during the non-contend period. An employer who must pay you $380,000 per year to enforce a 1-year non-contend will calibrate the decision carefully. For related context on employment agreements, see our CFO remuneration piece which includes discussion of severance agreement structures.
Enforceability by state: the map in 2025
The state-by-state variation in non-contend enforceability has evolved into the most significant variable for senior US professionals evaluating whether their current non-contend has practical bite. By late 2025, the following states have materially restricted non-contend enforceability: California (banned since 1872, recent legislation further restricted), Minnesota (banned since 2023), Oklahoma (banned), North Dakota (banned), and a growing list of states including Virginia, Colorado, Illinois, and Washington that have enacted income-threshold restrictions that exempt many senior professionals from the most restrictive terms.
The actionable complexity for senior professionals at major US companies: most large US employers operate nationally, and the non-contend in your employment agreement generally specifies governing law as the employer's state of incorporation (often Delaware) or headquarters state. This choice-of-law provision is regularly contested by employees who live and work in states that restrict non-competes. Courts in states that ban non-competes (California, Minnesota) have repeatedly declined to enforce non-competes against their state's residents even when the agreement specifies another state's law. Courts in states that permit non-competes have more variability. The upshot: if you live and work in a state with strong non-contend restrictions, your practical exposure is lower than the face of the agreement indicates, but you need a particular attorney opinion on your specific situation before relying on that assessment.
Negotiating non-competes before you sign
The best time to negotiate a non-contend is before you sign the employment agreement, when you still have leverage. Most candidates accept non-contend terms without negotiating them at all, treating them as standard boilerplate. At senior levels, this is a mistake. Several specific terms are negotiable at signing: the geographic scope (proposing to limit to specific states or regions where you'd actually contend, rather than nationwide), the duration (proposing 6 or 12 months instead of 24 or 36), the specific activities covered (proposing to limit to roles that would directly contend with your current responsibilities rather than any employment in the industry), and garden leave remuneration (proposing that enforcement of the non-contend is conditional on the company paying your salary during the restricted period).
Companies that want you enough to extend an offer generally have incentive to negotiate non-contend terms within reason. The negotiation is most effective when framed around specificity rather than resistance: "I'm comfortable with a non-contend that in particular protects your core business interests — can we work together on a narrower definition that we'd both feel good about?" is a more productive framing than "I don't want a non-contend." The former seeks a particular agreement the company can accept; the latter creates resistance that generally produces no result.