Non-Disparagement Provisions, Confidentiality Provisions, and now Non-Competition Agreements


On May 30, 2023, less than three months after the National Labor Relations Board ("NLRB") asserted that confidentiality provisions and non-disparagement provisions violate the National Labor Relations Act ("NLRA") and should not be in severance agreements, the NLRB General Counsel, Jennifer Abruzzo, in a memo to the Regional Directors and other NLRB officials, asserts that most employee non-compete agreements violate the NLRA.

The NLRA does not apply to supervisors. A supervisor is any individual having "authority in the interest of the employer to hire, transfer, suspend, layoff, recall, promote, discharge, assign, reward or discipline other employees, or reasonably responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if, in connection with the foregoing, the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment."

Non-Compete Provisions are Restricting

The General Counsel asserts that "non-compete provisions are overbroad, that is, they reasonably tend to chill employees in the exercise of section 7 rights, when the provisions could reasonably be construed by the employee to deny them the ability to quit or change jobs by cutting off their access to other employment opportunities that they are qualified for based on their experience, attitudes, and preferences as to the type and location of work." Specifically, she asserts that non-competes:

  • "chill employees from concertedly threatening to resign to demand better working conditions."
  • "chill employees from carrying out concerted threats to resign or otherwise concertedly resigning to secure improved working conditions."
  • "chill employees from concertedly seeking or excepting employment with a local competitor to obtain better working conditions."
  • "chill employees from soliciting their coworkers to go work for a local competitor as part of a broader course of protected concerted activity."
  • "chill employees from seeking employment, at least in part to specifically engage in protected activity with other workers at an employer’s workplace."

Consequently, unless the non-compete is narrowly tailored to “special circumstances justifying the infringement on employee rights,” a non-compete would chill employees from engaging in section 7 activity and violate section 8 (a) (1) of the NLRA.

The General Counsel to the NLRB cannot create a rule banning non-competes. However, she has the authority to prosecute cases to support her view. In the process, she would be requesting that the NLRB adopt her position regarding non-compete agreements. If the NLRB proceeding to support such a ban, it would be subject to court review.

This memo, from the General Counsel of the NLRB, is yet another indicator that non-compete agreements are becoming subject to increasing scrutiny.

Takeaway: Employers wanting to use a non-compete agreement should consult with counsel. Employers with questions can contact Tracy Armstrong or another member of the Wilentz Employment Law Team.

Attachment: Office of the NLRB General Counsel – Memorandum GC 23-08

Tags: Employment Law UpdateConfidentiality AgreementNational Labor Relations Act


The postings on this blog were created for general informational purposes only and do not constitute legal advice or a solicitation to provide legal services.  Although we attempt to ensure that the postings are complete, accurate, and current as of the time of publication, we assume no responsibility for their completeness, accuracy, or timeliness.  The information in this blog is not intended to create, and receipt of it does not constitute, a lawyer-client relationship.  Readers should not act upon this information without seeking professional legal counsel.

This blog may contain links to independent third party websites and services, including social media. We provide these links for your convenience, and you access them at your own risk.  We have no control over and do not monitor the content or policies (including privacy policies) of these third-party websites and have no responsibility for, and no liability with respect to, their content, accuracy, or reliability.  Unless expressly stated, we do not endorse any of the linked websites or any product, service, or publication referenced herein or therein.  We will remove a link to any site from this blog upon request of the linked entity.

We grant permission to readers to link to this blog so long as this blog is not misrepresented. This site is not sponsored or associated with any other site unless so identified.

If you wish for Wilentz, Goldman & Spitzer, P.A., to consider representing you, please obtain contact information from the Contact Us area of this blog or go to the firm’s website at  One of our lawyers will be happy to discuss the possibility of representation with you. However, the authors of Wilentz blogs are licensed only in New Jersey and/or New York and do not wish to represent anyone who viewed this site in a state where the site fails to comply with all laws and ethical rules of that state.

Sign Up

Tracy Armstrong Photo

Tracy Armstrong
Co-Chair, Employment Law Team