Practical Answers to Employment Law Issues
June 05, 2023 - NLRB, Non-Compete

NLRB General Counsel Memo Seeks Aggressive Enforcement Against Employee Non-Competes

elc blog thumbnail

On May 30, 2023, the National Labor Relations Board’s (the “NLRB’s”) General Counsel Jennifer Abruzzo (the “General Counsel”) issued Memo General Counsel 23-08 (the “Memo”), expansively finding that non‑competes with employees violate the National Labor Relations Act (the “Act”), except in limited circumstances. As foreshadowed in her memo on the NLRB’s enforcement against overbroad non‑disparagement and confidentiality clauses related to the McLaren Macomb decision, the General Counsel claims, without clear legal authority or other support, that offering, maintaining, or enforcing non‑competes and non-solicits with employees violates Section 7 of the Act where they reasonably tend to chill employees from engaging in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.” The Memo lists a variety of rationales, including non-competes with low-wage workers, to justify the General Counsel’s finding. The Memo, however, fails to articulate any clear examples of how non-competes interfere with traditional “concerted activities” protected by the Act, particularly in any manner to justify the sweeping scope of non-competes the Memo appears to find are unlawful. The Memo simply declares that non-competes are unlawful under the Act unless the employer can show that the non‑compete is “narrowly tailored to special circumstances justifying the infringement of employee rights.”

Read the full client alert.