Aging and People with Disabilities
Public Health Division - Facilities Planning and
Safety
October 26, 2023
In-Home Agency Providers:
The Oregon Home Care Commission, Oregon Department of Human Services,
and Oregon Health Authority are sharing important information to educate in-
home agencies and provide guidance about non-competition agreements.
Although it is appropriate to require some staff to sign non-competition
agreements, it is not a legal practice to require in-home agency caregivers to sign
these agreements. Because these non-competition agreements for caregivers are
not enforceable, the threat of legal action when an employee chooses to serve
consumers receiving Medicaid services as a homecare worker, personal support
worker, or personal care attendant is irresponsible and without merit.
Individuals who receive Medicaid in-home services have a choice of who provides
their services and supports. This may include an in-home agency but may also
include an individual enrolled as a homecare worker, personal support worker, or
personal care attendant. Preventing current, past and future in-home agency
caregivers to enroll as Medicaid providers not only undermines consumer choice
but is an illegal practice. These are not enforceable agreements.
It is a violation under Oregon Revised Statute (ORS) 653.295 to require
caregivers to sign non-competition agreements.
Per ORS 653.295, a non-competition agreement entered between an employer
and employee is void and unenforceable unless certain criteria are met. These
criteria would not be met for caregivers because it is highly unlikely the
employee’s annual gross salary and commissions, calculated on an annual basis,
at the time of the employee’s termination exceeds $108,581. In addition,
caregivers do not have access to trade secrets, as defined in ORS 646.461.
Please review the information below about non-competition agreements on the
Oregon Bureau of Labor and Industries (BOLI) website found here:
https://www.oregon.gov/boli/employers/pages/noncompetition-
agreements.aspx
Prior to 2022, a noncompetition agreement was ‘voidable’ under several
conditions. Under SB 169 (2021) the Legislature narrowed the application of
noncompetition agreements and clarified that agreements entered into on or
after January 1, 2022 which did not meet revised criteria are simply void. This
means an employee would not have to take any affirmative steps to invalidate
an agreement that didn’t meet the requirements.
Non-competition agreements have also been addressed at a federal level. Please
refer to General Counsel Memo GC 23-08 issued on 5/30/23 entitled Non-
Compete Agreements that Violate the National Labor Relations Act found here
the highlights the specific ways such agreements violate labor law:
https://www.nlrb.gov/guidance/memos-research/general-counsel-memos
Please be aware, violations under ORS 653.295 are punishable as a misdemeanor
under the penalties provided in ORS 653.991.
For questions about non-competition agreements, please contact the Oregon
Bureau of Labor and Industries at 971-361-8400 or email
employer.assistance@boli.oregon.gov
.
