Contracts which constrain a worker’s ability to work for a competitor for a certain period of time are common in Wall Street.
Contracts which constrain a worker’s ability to work for a competitor for a certain period of time are common in Wall Street.
The United States Federal Trade Commission’s (FTC) action to ban non-compete agreements has left Wall Street businesses rushing to restructure contracts and find new ways to tie down the high-priced personnel that their business models rely on.
The contracts, which constrain a worker’s ability to work for a competitor fora certain period of time after leaving their current employer, have long been a hallmark at big banks, brokers, asset managers and hedge funds.
But led by chair Lina Khan, FTC commissioners voted by three to two to invalidate existing contracts for most employees and for all new contracts starting in August.
The move undermines some of the fixtures of Wall Street life, including the ability to impose paid “gardening leave” and to withhold deferred bonuses when an employee leaves for a competitor. Headhunters predict it will free talented traders, investors and bankers to leave jobs where they are unhappy and give a boost to well-run groups that can offer more money and a more congenial environment.
“Businesses are going to get built and destroyed because of this rule,” predicted Laura Pollock, founder of Third Street Partners, a boutique executive talent firm that specialises in investment managers. “This is the beginning of real change.”
Industry groups counter that it will make US financial companies less competitive, drive up compliance costs and lead to a flood of lawsuits between employers and departing workers. They contend that highly paid professionals are well-positioned to negotiate fair remuneration for giving up some of their freedom.
“This will harm investors, including pensions, foundations, and endowments. It is disappointing that the FTC took an indiscriminate approach to rule-making that jeopardises the success of America’s capital markets,” Jennifer Han, chief counsel of the Managed Funds Association, said.
The FTC chair, Lina Khan. Photo / Graeme Jennings, New York Times
The US Chamber of Commerce has already filed a lawsuit alleging that the FTC overstepped its authority and further legal challenges are expected. “The firms and their lobbyists will fight this,” said one corporate lawyer.
But lawyers and financial businesses say they cannot afford to wait for the outcome of that lawsuit. They are combing through the rule’s more than 500 pages and seeking workarounds that will allow Wall Street to continue to protect its intellectual property and trade secrets.
“The breadth of the rule, if it becomes effective, will impact a lot of workers at a lot of levels all across Wall Street,” said Kathryn Mims, a partner focusing on global antitrust and competition at law firm White and Case. “Knowing how a financial firm operates behind closed doors, knowing the culture” are features firms try to keep well-protected through non-competes.
One of the biggest problems for Wall Street would be if companies are unable to use gardening leave to protect proprietary information. The FTC rule against non-compete clauses appears to outlaw the most common structure, although lawyers think it may be possible to rewrite contracts to allow for extended notice periods that could be used to sideline a departing employee.
Either way, lawyers and industry professionals predict that the changes could lead to more theft-of -trade-secret lawsuits such as the one that trading house Jane Street recently filed against two former employees who jumped to rival Millennium. They deny the allegations.
“The purpose of the non-compete is to allow the information to grow somewhat stale,” Peter Orszag, chief executive of investment bank Lazard, said. “If you have fresh information, even if your intent is not to reveal anything, sometimes by not answering a question, you’re revealing something, sometimes by body language. It is a really tough place to put people into without that kind of cooling-off period.”
While the FTC rule includes an exception for “senior executives”, that carve-out is only retroactive. The regulator defines this slice of the workforce as those making more than US$151,164 ($254,000) a year who are also in “policymaking positions”. New non-compete agreements, for any level of employee, are prohibited.
The regulator’s ban could also have sweeping ramifications for employee bonuses. Industry groups believe the rule will prevent businesses from cancelling deferred bonuses if an employee leaves while the money is being paid out.
As a result, new employers would face less pressure to buy old contracts, making it easier for smaller groups to compete for staff. “This will drive the growth of new funds and endeavours,” said Allison Rosner, a managing director with headhunters Major Lindsey and Africa.
Pollock predicted that the FTC ban will have an impact on work cultures even if it is held up or struck down by the courts. When New York City banned employers in 2017 from asking job candidates about their current salaries, the prohibition quickly spread to financial services concerns headquartered elsewhere.
Industry association Sifma argued in a public comment before the rule was adopted that the FTC did not have the power to regulate banks and credit unions. In theory, that could give traditional banks more flexibility on non-competes than asset managers, private equity firms, and hedge funds. However, industry lawyers believe that banking regulators have the option of enforcing the FTC’s rules on the banks, should they choose to do so.
A ban on non-competes will also force employers to be more creative. The FTC measure does not impact confidentiality and non-solicitation agreements, a move designed to give companies other ways to protect private information.
“Employers will certainly want to explore whether they’re using other tools as effectively as they could,” Christen Sewell, a partner at Covington and Burling, said.
For Wall Street professionals, the end of non-competes could force employers to give them positive reasons to stay on the job, rather than using legal agreements to tie them down.
“I’m really a fan of the FTC on this because [hedge funds] abuse these provisions,” said a quant trader, who asked not to be identified. “It’s really about the labour war and improving their position in negotiations with employees.”
That might mean higher pay or more humane working conditions in an industry where long hours and harsh criticism are legendary. “There’s going to be a shift from contractual handcuffs to golden handcuffs,” Rosner predicted.
As Orszag said, “the primary way forward for Lazard is what we do anyway, which is to make Lazard a very attractive place to be”.
