Discussion
NLRB Issues New Memos Narrowing NLRA Interpretation
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APPLIES TO
All Employers Subject to the NLRA
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EFFECTIVE
JUN 26, 2026 |
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Quick Look
- Employee nonsolicitation agreements and cooperation agreements that only apply after employment ends do not violate the NLRA.
- Noncompetition agreements generally do not implicate NLRA rights, and confidentiality provisions are typically read as protecting legitimate business interests rather than restricting protected activity.
- Even where certain nonsolicitation, inducement-of-third-parties, and non-disparagement provisions were technically unlawful, the claim was dismissed because the employer never actually enforced them against employees.
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Discussion
On June 26, 2026, the National Labor Relations Board (NLRB) released several advice memoranda addressing when employer agreements and workplace conduct fall within the protections of the National Labor Relations Act (NLRA). Advice memos are guidance issued by the NLRB General Counsel’s office to regional offices. Although they are not binding Board decisions, they do offer useful insight into how the agency is currently interpreting the law and periodizing enforcement.
Across the memos, the NLRB drew a consistent distinction: activity or contract language that only takes effect after employment ends generally does not restrict protected activity under the NLRA. The NLRB also confirmed that even where a contract provision is technically unlawful, a violation will not be found if the employer never enforced that provision against employees. Each memo is summarized below.
Nonsolicitation and Cooperation Clauses. In BAYADA Home Health Care, the NLRB reviewed a nonsolicitation-of-employees clause and a cooperation clause contained in a separation agreement. The NLRB found the nonsolicitation clause lawful under the McLaren Macomb standard (the current framework the Board uses to evaluate whether severance agreement terms unlawfully restrict NLRA rights) because it appeared in a separation agreement and applied only after employment ended, meaning it did not restrict any protected activity during employment. The NLRB also found the cooperation clause lawful. That clause required the former employee to assist with the employer’s legal or investigative matters. The NLRB reasoned that: (1) no prior precedent has held this type of clause unlawful; (2) any related questioning would occur after employment ended, when NLRA protections no longer apply; and (3) the clause was reasonably limited to matters like providing information or attending meetings, rather than compelling testimony against coworkers.
Noncompete and Confidentiality Provisions. In Biotricity, Inc., the NLRB reviewed a noncompete agreement, along with a related state-court lawsuit and arbitration proceeding brought in part to enforce that agreement. The NLRB found the noncompete and confidentiality provisions lawful, reasoning that noncompete clauses generally do not affect employees’ rights under Section 7 of the NLRA, and that the confidentiality clause would reasonably be understood as protecting the employer’s competitive business interests rather than restricting employees’ protected communications. As for the nonsolicitation, inducement-of-third-parties, and non-disparagement provisions, the NLRB said that even though portions of the provisions were unlawful, the claim should be dismissed on ”noneffectuation grounds,” meaning that because the employer never actually enforced these provisions against employees, there was no practical harm for the Board to remedy. As for the related lawsuit and arbitration, the NLRB found no NLRA violation, concluding the legal actions were not retaliatory, lacked any unlawful objective, and did not conflict with the NLRA because no protected activity was actually at issue in the underlying claims.
Overtime Policy Change and Termination for Recording a Meeting. In Sutherland Global Services, the NLRB considered both a change to the employer’s overtime policy, and a termination following an employee’s secret recording of a meeting with a supervisor. The NLRB found insufficient evidence of an NLRA violation in either instance. On the overtime policy, the NLRB acknowledged that the employee’s escalation of concerns about unpaid wages could arguably be tied to earlier protected group activity. However, there was not enough evidence to show the employer knew the complaint was raised on behalf of a group of employees, or that the policy change was made in retaliation. On the termination, the NLRB found insufficient evidence that the secret recording itself qualified as protected concerted activity. The employer stated it terminated the employee for violating its Clean Desk Policy, which requires personal items such as cell phones to be stored away to protect client confidential information.
While these rulings shed light on the NLRB’s interpretation of NLRA protections and enforcement strategy, employers must still take care when managing employee agreements and policies as they may be subject to more restrictive state laws. For any adverse employment activity that may implicate NLRA rights, employers should consult with legal counsel for compliance.
Action Items
- Review employment agreements with legal counsel for compliance.
Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser. © 2026 ManagEase
