NLRB GC gone, but not forgotten: The NLRB’s quiet war on noncompetes

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NLRB noncompeteHappy New Year!

2026 is shaping up to be an interesting year for federal policy concerning noncompetes and other restrictive covenants.

In that regard, while the FTC’s very public efforts to ban noncompetes have captured most of the headlines (more on that soon), the National Labor Relations Board (NLRB) has quietly charted a parallel, equally aggressive course, though without all the fanfare.

The NLRB continues to take an expansive view of what agreements “chill” employees’ unionization rights, though that may be changing soon.

A quick recap … 

To understand where we are, we need to look at the “Abruzzo Era” (2023–2024), which fundamentally redefined the scope of Section 7 rights:

  • In February 2023, the NLRB issued a decision (McLaren Macomb) finding that even just offering a severance agreement containing broad confidentiality and nondisparagement clauses violates the NLRA because it supposedly chills employees’ Section 7 rights — essentially the right of employees to unionize and all that goes along with it, including the right to discuss the terms and conditions of employment.
  • Then, in May 2023, then-General Counsel, Jennifer Abruzzo, issued a memo (“Non-Compete Agreements that Violate the National Labor Relations Act”) asserting that noncompetes violate the NLRA because they also purportedly chill employees’ Section 7 rights. In so doing, Ms. Abruzzo laid bare her belief that 200-plus years of noncompete law violates the NLRA. Further, despite its misnomer, the memo reached far broader than just noncompetes. It reflected Ms. Abruzzo’s contention that no-recruit agreements, fiduciary duty laws (even just the duty of loyalty), and broad confidentiality/nondisclosure agreements violate the NLRA. The memo thus marked a clear move toward an extraordinarily expansive interpretation of the scope of Section 7.
  • In August 2023, the NLRB issued a decision (Stericycle, Inc.) applying Ms. Abruzzo’s expansive approach to workplace policies, overturning years of precedent in the process.

Then, during 2024, the NLRB engaged in a series of administrative actions attacking noncompetes, no-recruits, B2B no-poach agreements, and “Stay-or-Pay” agreements, including the following:

    • Discussed in detail here, the complaint in that case alleged that various provisions in Juvly’s offer letter, rules, Code of Conduct, exit interview process, and, of course, its restrictive covenant agreement (including the noncompete, no-recruit, nonsolicit, and confidentiality obligations) and Juvly’s training repayment agreement all violated Section 7. The NLRB even went to far as to assert that certain statements made by representatives of the company were unfair labor practices.
    • In the settlement, Juvly “agreed to rescind the unlawful policies, cease its demands for training repayments, to pay more than $25,000 in monetary relief to two employees affected by the Employer’s unlawful discharge and withholding of benefits, post a remedial Notice to Employees across all of its facilities in the United States, and post a copy of the Notice to its Slack messaging application.”
  • June 13, 2024:  An NLRB Administrative Law Judge (ALJ) issued the first major ruling (J.O. Mory, Inc.) following Stericycle and the 2023 memo.
    • The ALJ summarized her decision as follows:

This case involves “salting,” a tactic some unions use to send organizers, or “salts,” to work for non-union employers to organize their employees. In 2022, an organizer with the Indiana State Pipe Trades Association (Union) applied for an open position with non-union HVAC company J.O. Mory, Inc. (Respondent). To increase his chances of being hired, he falsely claimed that he worked for a non-union employer. After working for Respondent for about a month, he revealed that he was there to organize its employees and never worked for the non-union employer. He was fired the next day. The General Counsel alleges that he was fired in retaliation for his union activity, and further alleges that Respondent’s employment agreement contains a non-compete clause and other provisions that chill employees from engaging in salting and other union and protected activities. Respondent says that the organizer was fired for lying, not for his union activity, and argues that its employment agreement is lawful. I find that the employee was fired in retaliation for his union activity and that Respondent’s employment agreement chills employees from engaging in union and other protected activities. I also find that the “Union Free Statement” in Respondent’s handbook contains unlawful threats and other coercive statements.

    • The ALJ found both the noncompete and the no-recruit covenants to be overly broad and therefore unfair labor practices in violation of the NLRA. Specifically, she found that “The non-competition clause . . . applies for 12 months after employees leave, but in practice it also applies to employees while they are working for Respondent, as most employees find a new job before leaving their old job, and the knowledge that they will be unable to work for a competitor in their geographic area if they are fired or leave would necessarily impact their behavior before and after they leave Respondent’s employ.” She also found that the justifications for the agreements — the same justifications recognized by most states to be proper — to be insufficient.
    • The ALJ also found the obligation “to inform [the company] of any offers or solicitations of employment they receive from third parties” to be a violation of the NLRA.
      • In fairness, this too was quite broad and unusual.
    • In short, while the decision was quite expansive in its application of the NLRA to these types of covenants, the particular covenants were also objectively objectionable.
    • As described by the NLRB:

On December 31, 2024, the Regional Director of Region 22-Newark approved a settlement remedying an unfair labor practice charge filed by SEIU 32BJ alleging that Planned Companies . . . , a janitorial, building maintenance, and concierge service provider based in Parsippany, NJ with various locations across the country, violated the National Labor Relations Act by maintaining an unlawful no-poach provision. On September 16, 2024, Region 22 issued a complaint . . . alleging that Planned Companies had maintained provisions in its contracts with its client buildings that interfere with, and are inherently destructive of, workers’ rights under Sections 8(a)(1) and (3) of the National Labor Relations Act. Specifically, Planned Companies restricted its client buildings from soliciting its employees to work for them in a similar job classification for a period of six months after the agreement is terminated, or from hiring employees after they leave Planned Companies’ employment. Any entity retained by the client building to replace Planned Companies was also bound by the hiring restriction.

    • The targeting of B2B no-poach agreements was no real surprise — although in a context in which such restriction might serve a legitimate business purpose is more surprising. For context, a similar agreement — though between the employee and former employer — was upheld in C&W Facility Services, Inc. v Mercado, although it led to significant public scorn given the individual affected.

2025: New Administration, Persistent Precedent

With the change of administration, came the change in leadership at the NLRB.

On January 27, 2025, Ms. Abruzzo was terminated. This was no surprise.

On February 14 (Valentine’s Day), 2025, NLRB Acting General Counsel, William B. Cowen, issued a memorandum rescinding both of Ms. Abruzzo’s memoranda (among others). The rescission was no surprise and (especially coupled with Ms. Abruzzo’s termination) seemed to eliminate the risk created by Ms. Abruzzo’s anti-business, expansive Section 7-rights approach.

Not so fast.

The Amazon Decision

On December 2, 2025, NLRB ALJ Kimberly Sorg-Graves  issued a 13-page decision in Amazon.com Services LLC and Skeete and Committee of Correspondence of Amazon Workers finding that certain broad language doomed various restrictive covenants — including nonsolicitation covenants — even for exempt workers.

Here are the details:

  • Amazon has its exempt employees sign a “Confidentiality, Noncompetition, and Invention Assignment” Agreement (the “Noncompete”) and has its non-exempt (hourly) workers sign a “Confidentiality and Invention Assignment” Agreement (the “CIA”).
  • Skeete was an exempt employee and therefore signed the Noncompete.
  • The confidentiality language in the Noncompete stated, “‘Confidential Information’ does not include the terms and conditions of Employee’s own employment.” (Emphasis added by NLRB.) The NLRB challenged the bolded language (in particular the limitation to the employee’s “own” employment).
  • The CIA provides in relevant part as follows (challenged language in bold):

“Confidential Information” means proprietary or confidential information of Amazon in whatever form, tangible or intangible, whether or not marked or otherwise designated as confidential, that is not otherwise generally known to the public, relating or pertaining to Amazon’s business, projects, products, customers, suppliers, inventions, or trade secrets, including but not limited to: business and financial information; Amazon techniques, technology, practices, operations, and methods of conducting business; information technology systems and operations; algorithms, software, and other computer code; published and unpublished know-how, whether patented or unpatented; information concerning the identities of Amazon’s business partners and clients or potential business partners and clients, including names, addresses, and contact information; customer information, including prices paid, buying history and habits, needs, and the methods of fulfilling those needs; supplier names, addresses, and pricing; and Amazon pricing policies, marketing strategies, research projects or developments, products, legal affairs, and future plans relating to any aspect of Amazon’s present or anticipated businesses. Nothing in this Agreement prohibits non-supervisory employees’ communications about their own or their coworkers’ wages, hours or working conditions.

  • Other challenged language (in bold, seemingly in the Noncompete) includes the following:
    • “Employee will not, directly or indirectly, whether on Employee’s own behalf or on behalf of any other entity . . . encourage any Customer or Business Partner to cease doing business with Amazon or to terminate or limit an existing relationship or arrangement with Amazon.”
    • “During employment and for 12 months after the Separation Date, Employee will not, directly or indirectly, . . . solicit or otherwise encourage any employee, contractor, or consultant of Amazon (“Amazon Personnel”) to terminate any employment or contractual relationship with Amazon . . . .”
  • The ALJ prefaced her conclusions with a number of broad legal principles:
    • “[T]he mere maintenance of rules may violate the Act without regard for whether the employer ever applied the rule for unlawful purposes.”
    • “[P]olicies requiring the relinquish of employees’ future Section 7 rights [are] unlawful.”
    • Even a rule that does not expressly violate the NLRA can nevertheless violate it if “employees would reasonably construe the language to prohibit Section 7” or  if “the rule was promulgated in response to union activity” or if “the rule has been applied to restrict the exercise of Section 7 rights.”
    • “With respect to facially neutral work rules that may be reasonably interpreted to restrict Section 7 activity, the Board interprets these rules ‘from the perspective of an employee who is subject to the rule and economically dependent on the employer, and who also contemplates engaging in protected concerted activity.’”
    • “If an employee could reasonably interpret the rule to have a coercive meaning, . . . the [rule] will be found presumptively unlawful, even if a contrary, noncoercive interpretation of the rule is also reasonable” — “even if the employer did not intend for its rule to restrict Section 7 rights.” This can only be overcome by a showing that the rule was necessary to advance a “legitimate and substantial business interest” that could not be protected through a narrower rule.
  • The ALJ found that each of the bolded provisions violated the NLRA.
    • The language in the Noncompete that stated that “‘Confidential Information’ does not include the terms and conditions of Employee’s own employment” was insufficient because it was limited to the employee’s own information, not terms and conditions generally. And even though Amazon later revised that language to allow discussion of all terms and conductions of anyone’s employment, that change was not rolled out across the company or otherwise modify the pre-existing agreements.
    • The bolded confidentiality language in the CIA (which was for non-exempt employees) was, according to the ALJ, unlawful based on the following:
      • “While employers may restrict the dissemination of trade secrets, or otherwise confidential information shared only with certain employees who have a heightened expectation of confidentiality, Respondent included this language in its policies for all employees regardless of their position.” (This is shocking insofar as suggests that low-level employees are free to spy on the company and disclose trade secrets.)
      • The ALJ also found that “the savings clause covering this provision only informs employees that the agreement does not prohibit them from discussing their or their coworkers’ ‘wages, hours, working conditions, or terms of employment.’ The savings clause is silent to other rights protected by the Act, such as the right to request that customers and other outside entities boycott Respondent and use information acquired through their work to engage in such activities.” (In what sane world should employees be able to use company trade secrets to encourage customers to boycott their employer?)
      • The ALJ also took issue with the term “legal affairs” because it “could reasonably be interpreted to include any actions taken by the NLRB or discussions amongst employees about whether to initiate various types of legal action against Respondent, the legality of certain policies, and about recently filed suits that are not yet public knowledge.” (This is a fair criticism, but ignores the context.)
      • The ALJ concluded with: “Respondent’s evidence of business justifications for maintaining such provisions is general and likely true about any business. Allowing such general evidence to establish a business justification that supersedes employees’ Section 7 rights defies the logic of requiring such evidence. Respondent provided no justification specific to its business needs that would outweigh employees’ Section 7 rights. While legitimate reasons may exist for a more narrowly tailored rule addressing some of the issues raised by the bold portions of the [confidentiality section], it is written more broadly than necessary to address those legitimate situations, and there are no assurances that it would not be applied to restrict all activity protected by the Act.”
      • The ALJ concluded with: “Respondent’s evidence of business justifications for maintaining such provisions is general and likely true about any business. Allowing such general evidence to establish a business justification that supersedes employees’ Section 7 rights defies the logic of requiring such evidence. Respondent provided no justification specific to its business needs that would outweigh employees’ Section 7 rights. While legitimate reasons may exist for a more narrowly tailored rule addressing some of the issues raised by the bold portions of the [confidentiality section], it is written more broadly than necessary to address those legitimate situations, and there are no assurances that it would not be applied to restrict all activity protected by the Act.” (Shockingly, the more universal the need for these protections, the more readily the NLRB appears to discount them — regardless of their actually necessity.)
    • The ALJ also found that the nonsolicit language violated the NLRA. The decision states, as follows:

I find that this provision can be reasonably interpreted to prohibit current and former employees from making negative statements about Respondent that do not cross the line into conduct not protected by the Act such as maliciously false statements. Posting negative statements about an employer’s employment practices on social media, in a handbill, etc. could reasonably be seen as discouraging others from doing business with Respondent. As discussed above, Respondent must narrowly tailor their rules to guard against reasonable interpretations of their rules that are contrary to the Act.

      • The ALJ specifically rejected “savings language” in another section that expressly allowed the employee to “discuss their and their coworkers’ wages, hours, and terms and conditions” it was “paragraphs away from the language” and still allowed for employees to “reasonably interpret [the overly broad confidentiality language] to limit lawful negative statements about the employment practices of Respondent.”
    • Finally, the ALJ found that the prohibition against former employees “encourag[ing] any Customer or Business Partner to cease doing business with Amazon or to terminate or limit an existing relationship or arrangement with Amazon” would prevent employees “from engaging in protected activity such as calling for a boycott of or engaging in lawful picketing against Respondent.” The ALJ rejected Amazon’s argument that this restriction was saved a generally worded clause that “excludes activity protected by the Act.” Quoting an earlier case, the ALJ stated, “Where an employer ‘draft[s] language calculated to restrain its employees from engaging in specific protected activity while simultaneously shielding itself from liability through a generally worded ‘savings clause’ it had to know would not negate the Sec. 7 restraint.’”

The ALJ required Amazon to engage in a series of remedial measures, including communicating to employees and former employees that the provisions were invalid and rescinded.

The Mobile Phlebotomy Decision

On December 11, 2025, NLRB ALJ Renée McKinney issued a 32-page decision in Mobile Phlebotomy Of Central Michigan, LLC and Sobanski finding, among other things, that prohibiting disclosure of “personnel” information is a violation of the NLRA. Instructively, the ALJ did not reach as extreme conclusions as the ALJ in Amazon.

The relevant details and issues are as follows:

  • There were two restrictive covenant agreements at issue: a nondisclosure agreement and a noncompete.
  • The ALJ relied on a similar legal framework as used in the Amazon decision.
  • As a result, the ALJ found that provisions that prohibited employees from disclosing their pay for five years and from disclosing pay shift levels or the amount earned to anyone violated employees’ Section 7 rights. (That should not be a surprise.)
  • With regard to a nondisclosure agreement, the ALJ found that including “personnel” information as confidential information was unlawful and it was also unlawful to “prohibit employees from disclosing the existence of the agreement, which is one of their terms and conditions of employment.” Accordingly, the ALJ also found that the financial remedy (provided for in the agreement) for violating the nondisclosure obligations also violated the NLRA.
  • As for the noncompete, the ALJ found only certain violations:
    • First, “the provision prohibiting associating with Respondent’s ‘current or former independent contractors, affiliates, and similar parties of the Owner under which a business relationship has been created’” violated the NLRA insofar as “employees have the right to discuss wages, hours, and terms and conditions of employment—and ‘employees’ includes former employees . . . .”
    • But, the ALJ took a more permissive view of confidentiality obligations in the noncompete than the ALJ in the Amazon case. Here, the ALJ found that the following language was acceptable:

The Recipient shall be prohibited from expressing or sharing any and all technical and non-technical information provided by the Owner, including but not limited to: data or other proprietary information relating to products, inventions, plans, methods, processes, know-how, developmental or experimental work, computer programs, databases, authorship, customer lists (including names, buying habits or practices of any clients), names of vendors or suppliers, marketing methods, reports, analyses, business plans, financial information, statistical information, or any other subject matter pertaining to any business of the Owner or any of its respective clients, consultants, or licensees that is disclosed to the Recipient under the terms of this Agreement.

Specifically, the ALJ found that language acceptable because “the context of the other terms in the list, which focus on proprietary, business-specific information” would not lead “a reasonable employee” to “conclude that it applies to protected activity.”

    • Finally, the ALJ rejected the argument that the injunctive relief provision was a violation. The ALJ reasoned that the remedy applies only “to those employees who share information that the Board has long recognized is not within employees’ right to disclose.”
  • The ALJ also rejected various arguments by the NLRB’s General Counsel that a lawsuit brought to enforce the noncompete was unlawful.

New Board. New GC. New Approach? 

As these two ALJ rulings  demonstrate, while Ms. Abruzzo and her memos are long gone, her enforcement philosophy continues to impacting administrative proceedings. The fact that an ALJ would conclude or even suggest that low-level employees have a protected right to share trade secrets to facilitate a boycott or that personnel information cannot be kept confidential is an extreme perspective that only serves to undermine state and federal trade secret laws, not to mention common law fiduciary duties.

But this approach may be changing.

On January 7, 2026, Scott Mayer and James Murphy were each sworn in as NLRB members, and Crystal Carey was sworn in as the new NLRB General Counsel.

Will this new team swing the NLRB pendulum back to a more balanced, even-handed approach? Will it swing the pendulum all the way to an employer-friendly approach? Or will it surprise everyone and continue to pursue Ms. Abruzzo’s expansive “chilling effect” theory?

We shall see!

In the meantime, employers should review their noncompetes, nonsolicits, no-recruits, and confidentiality agreements now, rather than waiting for the new Board to eventually clear the backlog (as we expect they will).

We will continue to monitor these developments.

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