Recent court decisions and agency actions have threatened companies' ability to protect themselves through noncompetition, nondisclosure and similar agreements. However, the U.S. Supreme Court overturning Chevron threw open the door to challenges of agency action.

Despite this uncertain regulatory landscape, employers are well advised to consider agency decrees—unless and until they are definitively struck down—while challenges play out. Additionally, employers should know that a mandamus petition is pending in the U.S. Court of Appeals for the Sixth Circuit concerning whether attorney-client privilege and work product protection apply to documents created during counsel-conducted internal investigations. The outcome could significantly impact disclosure protections of internal investigations.