On June 26, 2026, the NLRB’s Division of Advice released a memorandum that continues its reversal of the prior administration’s view that overbroad non-compete agreements alone violate an employee’s right to engage in protected activity under Section 7 of the NLRA. In doing so, the Division specifically stated that General Counsel Crystal Carey “is of the view that non-compete agreements do not as a general matter impact employees’ rights under Section 7.”
As background, in May 2023, former General Counsel Jennifer Abruzzo issued a memorandum that argued that non-competition agreements generally violate the NLRA. In February 2025, shortly after President Trump’s inauguration, the acting General Counsel of the NLRB rescinded that memorandum, as we previously discussed.
While the Division’s memorandum is not binding law, it reflects that the NLRB’s current leadership is unlikely to take the position that an overbroad non-compete agreement standing alone violates an employee’s right to engage in protected activity under Section 7 of the NLRA. That being said, employers should avoid overbroad non-compete and other restrictive covenants to ensure enforceability under applicable state and federal law. With respect to federal enforcement, employers should be mindful, as we previously discussed, that the FTC has signaled, notwithstanding its abandonment of the nationwide non-compete rule, it intends to continue pursuing case-by-case enforcement actions against employers that utilize non-competes that are not justified, overbroad or otherwise constitute an unfair method of competition under the FTC Act.