Summary At a Glance
- The NLRB’s Division of Advice has signaled that non-compete agreements do not generally interfere with employees’ Section 7 rights.
- The memorandum is not binding, and confidentiality, non-solicitation, non-disparagement, and other restrictive provisions may still create legal risk.
- Employers should review restrictive agreements for overly broad language, state-law compliance, and appropriate enforcement practices.
On June 26, 2026, the National Labor Relations Board’s Division of Advice issued an Advice Response Memo signaling a change in how the agency may evaluate employee non-compete agreements under the National Labor Relations Act.
The memorandum recommended dismissing charges involving six-month non-compete and confidentiality provisions signed by former employees who later accepted employment with a competitor.
Most significantly, the Division stated that the current NLRB General Counsel does not view non-compete agreements as generally interfering with employees’ rights under Section 7 of the National Labor Relations Act.
Background
The previous NLRB General Counsel took the position that broadly drafted non-compete agreements could discourage employees from engaging in protected concerted activity, including acting together to seek improved wages or working conditions or threatening to leave for other employment.
Although this position appeared in agency guidance, it was not adopted as a binding decision and was later withdrawn.
The new memorandum indicates that current NLRB prosecutors are unlikely to challenge a non-compete agreement solely because it may discourage an employee from accepting work with another employer.
What Employers Need to Know
The memorandum does not provide blanket approval for all restrictive agreements, and confidentiality, non-solicitation, and non-disparagement provisions may still create risk depending on how they are written and enforced.
Limitations that employees could reasonably interpret as prohibiting discussions about wages, benefits, workplace conditions, or other protected activity may violate the National Labor Relations Act. Similarly to the prior General Counsel’s position, the current General Counsel’s enforcement position is not a binding precedent. Administrative law judges, the NLRB, or a court could reach a different conclusion.
As several states currently prohibit non-compete agreements or limit their use based on employee earnings, job duties, and other factors, employers should be sure that they comply with applicable state laws.
Next Steps for Employers
- Review Restrictive Covenant Agreements. Review non-compete, confidentiality, non-solicitation, and non-disparagement provisions together rather than evaluating individually.
- Avoid Overly Broad Language. Ensure agreements do not prohibit employees from discussing wages, benefits, working conditions, or other legally protected workplace matters.
- Review State Requirements. Determine whether the agreement complies with the law of the state in which the employee works.
- Review Enforcement Practices. Before enforcing an agreement, consider the employee’s position, the business interest being protected, the agreement’s scope, and applicable state law.
- Monitor NLRB Developments. The agency’s position may change through future Board decisions, court rulings, or changes in leadership.
- Consult Legal Counsel. Employers should consult knowledgeable legal counsel before drafting or enforcing restrictive covenant agreements.
