National Labor Relations Board (NLRB) General Counsel (GC) Jennifer Abruzzo's efforts to alter the labor and employment landscape continue. The GC's latest controversial enforcement memorandum (GC Memo 23-08) asserts that certain non-compete provisions in employment contracts and severance agreements violate the National Labor Relations Act.

The GC previously issued controversial enforcement memoranda involving such issues as:

1. Invalidating Confidentiality, Non-Disparagement Provisions in Severance Agreements;
2. Employee's Right to Refrain from Captive Audience and Other Mandatory Meetings; and
3. Limiting Electronic Monitoring of Employees.

GC memos are not binding law. However, the memos outline theories that the GC will prosecute. Here, the GC seeks to pursue a new theory that non-compete agreements generally interfere with employee rights protected by Section 7 of the Act.

Highlights

GC Memo 23-08 states that, absent narrowly tailored provisions for "special circumstances," the "proffer, maintenance, and enforcement" of non-compete agreements tend to infringe on employees' Section 7 rights to engage in protected concerted activities under the Act and, therefore, they are unlawful. The GC declared that retaining employees or protecting special investment in training employees are unlikely to "ever justify" an overbroad non-compete provision.

GC Abruzzo's memo contends that overbroad non-compete agreements violate the Act when employees could reasonably construe the...

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