Labor & Employment Law Daily Wrap Up, NLRB NEWS—Advice memo reconfirms that NLRB will not pursue Section 7 claims based on non-compete agreements, (May 1, 2026)

By Brandi O. Brown, J.D.

“The Acting General Counsel is of the view that non-compete agreements do not as a general matter impact employees’ rights under Section 7.”

In a May 2023 memorandum (GC 23-08), then-NLRB General Counsel Jennifer Abruzzo set forth her view that the proffer, maintenance, and enforcement of noncompete provisions in employment contracts and severance agreements violate the National Labor Relations Act, with limited exceptions. Abruzzo instructed NLRB regions to seek make-whole relief for employees affected by overbroad noncompete provisions. In October 2027 she issued another memorandum (GC 25-01), relating to remedying the harmful effects of non-compete and stay-or-pay provisions. It identified forms of stay-or-pay provisions used by employers that Abruzzo asserted would violate the Act unless “narrowly tailored.”

However, in February 2025, under the new administration, NLRB Acting General Counsel William B. Cowen issued a memo (GC 25-05) to all field offices, rescinding certain memoranda issued by the former General Counsel, including GC 23-08 and GC 25-01.

Advice memo. In an advice memo issued by the Division of Advice in March 2025, but just released by the NLRB this week, the agency quickly put that guidance into practice in a matter that had been submitted by a region regarding a non-compete provision used by a broadcast television station in Alabama. In that case, the employee had signed a non-compete provision agreeing not to engage in any similar business in the defined region during and for a period of one year following termination of employment. That individual was discharged in 2023 for poor performance and proffered a separation agreement that included a covenant not to solicit certain customers of the television station for one year.

The advice memo referenced the rescission of GC 23-08 and stated, “Under current law, the Employer did not violate the Act by maintaining the non-compete provisions covered by GC 23-08.”

It explained, “The Acting General Counsel is of the view that non-compete agreements do not as a general matter impact employees’ rights under Section 7. Accordingly, regions should no longer allege non-compete provisions covered by the now-rescinded GC 23-08 as unlawful under the Act.”

The region was instructed to dismiss the allegations concerning these provisions.

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