On June 26, 2026, the NLRB's Division of Advice issued an advice memorandum signaling a significant shift in how the Agency will evaluate non-compete agreements under the National Labor Relations Act (NLRA). The memorandum recommends dismissal of charges challenging six-month non-compete and confidentiality provisions signed by former employees who left to work for a competitor.
Most significantly, the Division stated that General Counsel Crystal Carey “is of the view that non-compete agreements do not as a general matter impact employees’ rights under Section 7.” That position marks a sharp departure from former General Counsel Jennifer Abruzzo's view that overbroad non-compete agreements generally chill employees' exercise of protected concerted activity.
Former General Counsel Abruzzo argued that overbroad non-compete agreements unlawfully restrict employees' Section 7 rights by limiting their ability to seek or threaten to seek alternative employment as part of protected concerted activity. Although she advanced that position in a 2023 General Counsel memorandum, the Board never adopted the theory in a precedential decision. In 2025, then-acting General Counsel William Cowen withdrew Abruzzo’s memoranda, and this latest advice memorandum provides the clearest indication yet that NLRB prosecutors will no longer pursue that theory as a general matter.
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