So far, 2023 has been a wild ride for employers, a theme that looks to be continuing into the third quarter of the year. While certain predictions we made during Q1 came true in Q2 (we are looking at you, NLRB), others such as the Supreme Court’s decision in Groff v. DeJoy[1] took us by surprise, with a decision that upended over 40 years of established case law. For Q2, we’ve focused on some major developments in the labor and employment arena.

NLRB Comes for Non-Compete Agreements

Continuing its seemingly orchestrated and systematic attack on both protections related to intellectual property belonging to employers as well as their freedom to contract with their employees, the National Labor Relations Board (the “NLRB”) General Counsel (the “GC”) has issued yet another memorandum taking aim at employers. As the GC hinted back in March, this new memorandum takes aim at the “proffer, maintenance, and enforcement” of noncompete agreements whether in employment or severance agreements. In the memorandum, the GC opines that noncompete provisions violate the National Labor Relations Act (“NLRA”) by interfering with the exercise of covered employees’ Section 7 rights. This was based largely in part to the fact that such agreements prevent employees from exercising their rights to quit due to fear that they will not be able to obtain gainful employment or from seeking or accepting employment with a local competitor of their current employer. While the memorandum takes aim at...

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