In my view, the proffer, maintenance, and enforcement of a non-compete
provision that reasonably tends to chill employees from engaging in Section 7 activity … violate Section 8(a)(1) unless the provision is narrowly tailored to special
circumstances justifying the infringement on employee rights.
With that sentence from NLRB General Counsel Jennifer Abruzzo’s just-published memo — entitled, Non-Compete Agreements that Violate the National Labor Relations Act — Ms. Abruzzo sent employment lawyers (including this employment lawyer) scrambling to understand exactly what she said and what she means.
- Concertedly threatening to resign to demand better
- Carrying out concerted threats to resign or
otherwise concertedly resigning to secure improved working conditions;
- Concertedly seeking or accepting employment
with a local competitor to obtain better working conditions;
- Soliciting their co-workers to go work for a local
competitor as part of a broader course of protected concerted activity; and
- Seeking employment, at least in part, to
specifically engage in protected activity with other workers at an employer’s workplace, such as through union organizing.