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Page 83-84 provides some guidance on garden leave and suggests that it will still be allowed under the new rule: > With respect to garden leave agreements, as

Page 83-84 provides some guidance on garden leave and suggests that it will still be allowed under the new rule: > With respect to garden leave agreements, as noted previously, commenters used the term “garden leave” to refer to a wide variety of agreements. The Commission declines to opine on how the definition of non-compete clause in § 910.1 would apply in every potential factual scenario. However, the Commission notes that an agreement whereby the worker is still employed and receiving the same total annual compensation and benefits on a pro rata basis would not be a non-compete clause under the definition, because such an agreement is not a post-employment restriction. Instead, the worker continues to be employed, even though the worker’s job duties or access to colleagues or the workplace may be significantly or entirely curtailed. Furthermore, where a worker does not meet a condition to earn a particular aspect of their expected compensation, like a prerequisite for a bonus, the Commission would still consider the arrangement “garden leave” that is not a non-compete clause under this final rule even if the employer did not pay the bonus or other expected compensation. Similarly, a severance agreement that imposes no restrictions on where the worker may work following the employment associated with the severance agreement is not a non-compete clause under § 910.1, because it does not impose a post-employment restriction.

zippothrowaway 2y ago
Doesn't this mean the end of 'at-will' for anyone that a company wants to cover with a non-compete? At present a company can have their cake and eat it, giving you one day notice of end of employment but then enforcing a non-compete for x months. If this survives the Supreme Court, wouldn't a company would have to put in your employment contract that you/they must give x months notice to end employment if they wanted to restrict you? Otherwise you could give one days notice and they wouldn't be able to put you on gardening leave.
- viraptor 2y ago
  The gardening leave still works as long as it's beneficial to both parties. The employee gets an effective long, paid holiday and the company gets a non-complete equivalent. Now they have to really ensure that pay is worth more than changing the employer though. It's less "end of at-will" and more "if you want effective non-competes, it's going to cost you".
  - zippothrowaway 2y ago
    Or the employee agreement you sign includes a notice period of 6 months from either side. I think you're right that negotiated gardening leave will happen but I can also see companies baking in the gardening leave at the start of employment (so no longer at will) as being cheaper.
    - davidgay 2y ago
      > Or the employee agreement you sign includes a notice period of 6 months from either side. Those are illegal in at-will states.
      - andthenzen 2y ago
        Source? My understanding is that at-will states have a default presumption of at-will employment in the absence of a contract, but parties are free to contract alternatively. Which states invalidate mutually agreed upon notice periods?
        davidgay 2y ago
        You are right and my memory was faulty:(
        yladiz 2y ago
        It’s not illegal, but from what I understand an excessively long notice period would very likely be shot down by the courts. There are a lot of arguments to be made here (for example, what’s stopping an employer from putting a 5 year notice period from day 1 if they can put an arbitrary one?). I imagine if companies do increase it or introduce one in general, it would be closer to 1 month, maybe 2, not 6.
      - mlrtime 2y ago
        They are not illegal, and even if there is a grey area good luck defending. I worked at a hedge fund in NYC. I gave my 2 week notice. HR said that the employee contract that I signed when I joined stated a minimum of a 4 month notice period. This would have completely killed my next job which I already accepted. I should have known this was in the employee agreement, but I didn't know they they would threaten lawyers on me if I didn't stay 3 months.

zippothrowaway 2y ago

Doesn't this mean the end of 'at-will' for anyone that a company wants to cover with a non-compete? At present a company can have their cake and eat it, giving you one day notice of end of employment but then enforcing a non-compete for x months. If this survives the Supreme Court, wouldn't a company would have to put in your employment contract that you/they must give x months notice to end employment if they wanted to restrict you? Otherwise you could give one days notice and they wouldn't be able to put you on gardening leave.

viraptor 2y ago
The gardening leave still works as long as it's beneficial to both parties. The employee gets an effective long, paid holiday and the company gets a non-complete equivalent. Now they have to really ensure that pay is worth more than changing the employer though. It's less "end of at-will" and more "if you want effective non-competes, it's going to cost you".
- zippothrowaway 2y ago
  Or the employee agreement you sign includes a notice period of 6 months from either side. I think you're right that negotiated gardening leave will happen but I can also see companies baking in the gardening leave at the start of employment (so no longer at will) as being cheaper.
  - davidgay 2y ago
    > Or the employee agreement you sign includes a notice period of 6 months from either side. Those are illegal in at-will states.
    - andthenzen 2y ago
      Source? My understanding is that at-will states have a default presumption of at-will employment in the absence of a contract, but parties are free to contract alternatively. Which states invalidate mutually agreed upon notice periods?
      - davidgay 2y ago
        You are right and my memory was faulty:(
      - yladiz 2y ago
        It’s not illegal, but from what I understand an excessively long notice period would very likely be shot down by the courts. There are a lot of arguments to be made here (for example, what’s stopping an employer from putting a 5 year notice period from day 1 if they can put an arbitrary one?). I imagine if companies do increase it or introduce one in general, it would be closer to 1 month, maybe 2, not 6.
    - mlrtime 2y ago
      They are not illegal, and even if there is a grey area good luck defending. I worked at a hedge fund in NYC. I gave my 2 week notice. HR said that the employee contract that I signed when I joined stated a minimum of a 4 month notice period. This would have completely killed my next job which I already accepted. I should have known this was in the employee agreement, but I didn't know they they would threaten lawyers on me if I didn't stay 3 months.