NLRB Memo: Noncompete Agreements Do Not Violate NLRA by Default
HR and legal teams using noncompetes should reassess enforceability after the NLRB clarified these agreements do not inherently violate federal labor law.
A recent NLRB Advice Memorandum concludes that noncompete agreements, on their face, do not violate Section 8(a)(1) of the National Labor Relations Act. The memo signals a shift from the more aggressive stance taken by the prior administration, which had pursued noncompetes as restraints on protected concerted activity. However, the memo cautions that noncompetes can still run afoul of the NLRA when their specific terms chill employees from discussing wages, working conditions, or engaging in collective action. Employers should audit existing noncompete language for overbroad provisions, particularly those restricting discussions about employment terms or limiting access to competitors in ways that interfere with Section 7 rights. State law restrictions remain unaffected.