[andthenzen]

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]

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]

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]

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]

> Or the employee agreement you sign includes a notice period of 6 months from either side.

Those are illegal in at-will states.

[andthenzen]

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?

[yladiz]

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.

[davidgay]

You are right and my memory was faulty:(

[mlrtime]

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.