The landscape surrounding non-solicitation agreements is undergoing significant transformation, driven in large part by recent actions and interpretations from the National Labor Relations Board (NLRB). At the heart of this shift is a concerted effort by the NLRB to align non-solicitation agreements with the protections afforded to employees under the National Labor Relations Act (NLRA).
Back in May of 2023 the NLRB General Counsel issued Memorandum 23-08 (“GC Memo”) which focused on the legality of non-compete agreements under the NLRA. The GC Memo takes the position that, with few exceptions, non-compete agreements should be deemed unlawful because they can “chill” employees from engaging in activities protected under Section 7 of the NLRA. Section 7 guarantees employees, whether unionized or not, the right to organize, bargain collectively, and participate in other concerted activities for mutual aid or protection.
The GC Memo emphasized that non-compete agreements could deter employees from leaving their jobs to seek better working conditions, organizing or joining unions, or even discussing job opportunities with competitors—all actions protected by the NLRA. While the memo primarily targeted non-compete agreements, it left open questions regarding the status of non-solicitation agreements, which employers often pair with non-competes to protect their business interests. Generally speaking, non-solicitation provisions prohibit...
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