NLRB has expanded its scrutiny of nonsolicitation agreements

The landscape surrounding nonsolicitation agreements is undergoing significant transformation, driven in large part by recent actions and interpretations from the National Labor Relations Board (NLRB). At the heart of this shift is a concerted effort by the NLRB to align nonsolicitation agreements with the protections afforded to employees under the National Labor Relations Act (NLRA).

NLRB General Counsel’s 2023 memorandum

Back in May 2023, the NLRB General Counsel issued memorandum 23-08, which focused on the legality of noncompete agreements under the NLRA. The GC memo takes the position that, with few exceptions, noncompete agreements should be deemed unlawful because they can “chill” employees from engaging in activities protected under Section 7 of the NLRA. Section 7 guarantees employees, whether unionized or not, the right to organize, bargain collectively, and participate in other concerted activities for mutual aid or protection.

The GC memo emphasized that noncompete agreements could deter employees from leaving their jobs to seek better working conditions, organizing or joining unions, or even discussing job opportunities with competitors—all actions protected by the NLRA. While the memo primarily targeted noncompete agreements, it left open questions regarding the status of nonsolicitation agreements, which employers often pair with noncompetes to protect their business interests. Generally speaking, nonsolicitation provisions prohibit employees from “soliciting” or “recruiting” their other coworkers for a different employer.