On the heels of the National Labor Relations Board’s decision in McLaren Macomb, which invalidated most confidentiality and nondisparagement provisions in a variety of employment agreements (as we covered here and here), NLRB General Counsel Jennifer Abruzzo (the “GC”) issued GC Memorandum 23-08 on May 30, 2023, announcing that, in her view, the proffer, maintenance, and enforcement of non-compete provisions violate Section 8(a)(1) of the National Labor Relations Act (the “Act”) except in very limited circumstances. This direct challenge to the lawfulness of commonly-used non-compete agreements mirrors the Federal Trade Commission’s (“FTC”) recent proposed rulemaking that would ban employers from imposing such agreements on their workers, and follows the Board’s memoranda of understanding with the FTC and the Department of Justice’s Antitrust Division, both of which addressed the anticompetitive effects of non-compete agreements (covered here). …

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