The RDM Team
Staff, Rasmussen Dickey Moore

I was delighted to attend the Claims and Litigation Management Alliance’s Annual Conference in beautiful San Francisco earlier this month. While I learned many lessons during my time at the CLM Annual Conference, one theme consistently emerged: What is going on with the younger generations? Whether it was a seminar, lunch session, or simply advice from seasoned professionals, it became apparent that age and experience play an essential role in the insurance industry.  

It is no surprise to anyone that Millennials and members of Gen Z tend to think differently than senior generations. Now that younger generations are entering adulthood and the workforce, it is pertinent that all industries keep up with the times.   

Millennials and Gen Z Are Hesitant to Join the Insurance Industry   

A 2024 study commissioned by CLM examined trends for insurance defense counsel. The study consisted of 375 attorneys, including associates, managing partners, and equity shareholders, and compared results from 2020 to 2024. One notable takeaway from the study is that “91 percent [of respondents] reported difficulty in attracting new attorney talent to their firms,” noting that 66 participants stated that it is “much, much more difficult.” Further, only 53 percent of those in the study would recommend insurance law to a new law school graduate.   

The study outlined possible reasons for this inability to recruit. Suggestions from non-associate attorneys included:  

• Billing restrictions from carriers limit the work younger attorneys can do.  
• Billable hour requirements place pressure on young attorneys.   
• There is a lack of ambition and work ethic in the younger generations.   
• An unwillingness exists to “meet the grind necessary to succeed at insurance defense work.”   

Among the most popular responses from associate attorneys:  

• Job candidates seek flexible/remote work schedules that firms do not provide.   

The concerns of associates and non-associates clearly differ. Associates are likely members of younger generations, while the non-associates are experienced attorneys in the field. The senior attorneys’ comments reflect the common attitudes and practices in the field and a lack of belief in newer generations. In contrast, the associates’ comments idealize a healthy work-life balance. The gap is substantial. Can it be bridged?  

What Can Be Done?  

Change the Way You Market Insurance Law  

Insurance is more than just the co-pays and car accidents that most people are immediately familiar with. Insurance deals with a wide variety of areas, including wrongful death, products liability, motor vehicle accidents, natural disasters, employment, and essentially any other scenario in which a party can hold a policy. Not only is there an area of interest for everyone, but every day can look different in the field of insurance law.   

Understand the Value that Younger Perspectives Can Provide  

Gen Z is the most diverse generation of Americans. With diversity comes different backgrounds, understandings, opinions, and viewpoints. Problem-solving skills are critical to the practice of law. Employers and senior employees should be open-minded about approaching problems from different angles.

Value Work-Life Balance

While younger generations are more likely to focus on work-life balance and flexibility than generations before, this does not mean they lack passion for their work. Placing importance on the lives and livelihoods of employees leads to decreased turnover, increased morale, and a feeling of value that pays dividends in dedicated, quality results. As a member of Gen Z and defense counsel, it is worth sharing that I am lucky to have a job as a young professional where my employer treats me well, my work interests me, and I feel valued as a part of the team. 

Millennials and Gen Z in the Insurance World  

Employing defense counsel is one of many areas in which the younger generations will affect the industry. You will now find Gen Z and Millennials throughout every step of the claims process. Whether they encounter younger people as jurors, mediators, judges, claimants, or opposing counsel, defense counsel must be open-minded to different perspectives. 

Appealing to Millennial and Gen Z Perspectives 

From boycotts to marches to strikes, younger people are quick to use their voices to push for societal changes. The accompanying morals and attitudes include growing distrust of large corporations among Millennials and Gen Z. As defense counsel, it is crucial to demonstrate the facts of each case clearly and personalize your clients. 

Failure to do so will result in increased instances of outlandishly high damages—the infamous “Nuclear Verdicts.” These verdicts lead to increased costs for services and goods. The potential of verdicts resulting in big paydays prolongs the legal process, as plaintiffs will hold out if they believe they can obtain a larger settlement.  

Defense counsel must be aware of the views that younger generations have. Plaintiff’s counsel can successfully use “reptile strategy,” convincing those who determine the verdict to vote against corporate greed. Defense counsel must be able to allay these fears and ensure that the case is decided based on the facts. Younger generations are receptive to truth, honesty, and clarity. Experienced defense counsel should remember this as they adjust arguments and strategies to persuade younger juries and other parties involved in the claims process.  

The Experiences of a Gen Z Insurance Defense Attorney   

While it hasn’t yet been a year since I was sworn in at the Missouri Supreme Court, my rapid transition from law student to lawyer has taught me so much. Whether you are a young attorney looking for a path, an experienced attorney wondering how to attract the newer generations, or a professional in any field that deals with insurance (and that’s just about every field), here is why I chose this career path and why I am so happy I did: 

Developing Skills and Expanding Expertise 

There are myriad opportunities to explore and learn about the field. From products liability to personal injury, every case is different. My assignments range from in-depth research to attending court hearings, drafting court submissions, and everything in between. The case may revolve around science, business, or some niche subject you initially knew nothing about. Whatever it is, you gain expertise in something you never thought you would have. 

Understanding Nuance in Business and Insurance 

Like many of my Gen Z peers, I also felt that big businesses were often greedy and a threat to morality. Well, it’s more complicated than that. Accidents happen. Mistakes are made. And at the center of any business are humans. Civil litigation is necessary to ensure the fairest outcome for all parties.  

Working with Teams Across Industries 

Everyone is happy to help. With all the moving pieces in civil litigation, I constantly have questions. From coworkers, mentors, support staff, and co-defense counsel, none of them want to see you fail, and working as a team, regardless of generational differences, ensures the best outcomes for our clients.   

The current landscape regarding the enforcement of non-compete agreements is about to get flipped on its head in the United States. Following President Biden’s July 2021 executive order encouraging the Federal Trade Commission to employ its statutory rulemaking authority “to curtail the unfair use of non-compete clauses and other clauses or agreements that may unfairly limit worker mobility,” on January 5, 2023, the FTC—in a profound exercise of its regulatory power—issued a notice of proposed rulemaking that would have a sweeping effect on the enforcement of non-compete agreements.

The Proposed Rule 

The new rule will not only bar employers from entering into non-compete agreements with their workers. It will additionally require employers to rescind pre-existing non-compete clauses no later than 180 days after the final rule is published. Additionally, employers will be required to provide notice to their employees that, as of the compliance date, any non-compete clauses are no longer in effect and may not be enforced against the worker.

To properly comply with the rule, an employer’s communication to its workers would need to be “individualized” and “on paper or in a digital format such as, for example, an email or text message.” Notice would need to be delivered within 45 days of rescinding the non-compete clause. The notice requirement would apply to current and former workers, to the extent that “the worker’s contact information [is] readily available.” The proposed rule includes a very limited exception which is applicable only to “a person who is selling a business entity or otherwise disposing of all of the person’s ownership interest in the business entity, or by a person who is selling all or substantially all of a business entity’s operating assets, when the person restricted by the non-compete clause is a substantial owner of, or substantial member or substantial partner in, the business entity at the time the person enters into the non-compete clause.” 

Preemptive Effect on States’ Non-Compete Laws

Until now, the enforceability of non-competition clauses was a matter of state law, and states’ positions regarding the proper scope of noncompetition restrictions have varied. If implemented, however, this new rule will supersede all state laws, regulations, orders, or interpretations to the extent that they are inconsistent with the FTC’s rule. It’s worth noting that only California, North Dakota, and Oklahoma outright ban the enforcement of non-compete agreements—so the FTC’s rule would effectively create a nationwide policy that goes further than state law in the remaining 47 states.

New Non-Compete Rule Certain to Face Legal Challenges

The tremendous significance of this new rule cannot be overlooked. Most U.S. companies will be forced to completely change how they operate in retaining talent and safeguarding company secrets. Thus, it should come as no surprise that the rule, if adopted in its current form, will face prompt legal challenges.

In publishing the Notice of Proposed Rulemaking—which is the first step in the FTC’s rulemaking process—FTC Commissioners voted 3-1, along partisan lines, with Commissioner Christine Wilson being the lone dissenter. In her dissenting statement, Commissioner Wilson notes that the proposed rule “…represents a radical departure from hundreds of years of legal precedent that employs a fact-specific inquiry into whether a non-compete clause is unreasonable in duration and scope, given the business justification for the restriction.” She further expects that the “…Commission’s competition rulemaking authority itself certainly will be challenged,” including under the “major questions doctrine” addressed in West Virginia v. EPA, as the “Commission lacks clear Congressional authorization to undertake this initiative.”

The public will have 60 days to submit comments on the proposed rule, which was based on a preliminary finding that non-compete clauses constitute an unfair method of competition and, therefore, a violation of Section 5 of the Federal Trade Commission Act. The FTC noted that it is specifically seeking comments on: 

1. Whether franchisees should be covered by the rule; 
2. Whether senior executives should be exempted from the rule or subject to a rebuttable presumption rather than a ban; and 
3. Whether low- and high-wage workers should be treated differently under the rule.

The comment period closes after March 10, 2023. The rule would subsequently take effect 180 days after the final version is published, but its imposition could be delayed as it is almost certain to face a significant wave of litigation challenging the constitutionality of the rule.

Although the rulemaking process is still in the early stages, this is the strongest indication of legislative and executive intent to void existing non-compete agreements and ban the use of such agreements going forward. As the tides drastically change for American businesses, employers should be proactive before this comment period is over and speak to an attorney regarding how their policies on non-compete agreements will be affected going forward. RDM’s Employment and Labor Law Team is ready to help you understand your options and ensure compliance with potential new regulations. Contact RDM today.