White Paper NLRB Non Competes
Senior Vice President, Employment Policy Division, U.S. Chamber of Commerce
July 28, 2023
Washington, D.C. - Today, the U.S. Chamber of Commerce published a white paper, entitled The NLRB General Counsel’s Misguided and Unsupported Attempt to Outlaw Non-Compete Agreements, that examines the National Labor Relations Board (NLRB) General Counsel (GC) Jennifer Abruzzo’s drive to ban non-compete agreements.
On May 30, 2023, the NLRB GC issued Memorandum 23-08, titled “Non-Compete Agreements that Violate the National Labor Relations Act (NLRA).”1 In the memorandum, she urges the Board to make new law declaring that the proffer, maintenance, and enforcement of employee non-compete agreements by employers is unlawful under the NLRA. The GC’s unprecedented foray into regulating non-competes follows the Federal Trade Commission’s recent controversial proposal to ban virtually all non-compete agreements in the workplace.
While the memorandum is dressed up to look like a compelling legal analysis, it rests on highly questionable legal grounds, and the myriad cases it cites in support of the proposal have little or nothing to do with non-compete agreements, or their lawfulness under the NLRA.
The GC’s attempt to convince the NLRB to outlaw non-compete agreements based on scant legal support and a highly selective reading of case law is puzzling at best and troubling at worst.
The full paper can be found here.
About the authors
Spencer oversees the Chamber’s work on immigration, retirement security, traditional labor relations, human trafficking, wage hour and worker safety issues, EEOC matters, and state labor and employment law.