In a March 22 memo issued in the aftermath of the NLRB's recent February 21, 2023 decision in McLaren Macomb, 372 NLRB No. 58, the NLRB's General Counsel Jennifer Abruzzo, Esq. suggested that noncompete agreements that are part and parcel of a severance agreement may inherently violate the National Labor Relations Act. More specifically, in response to the question as to which provisions contained within severance agreements she deemed problematic, Ms. Abruzzo stated as follows:

I believe that some other provisions that are included in some severance agreements might interfere with employees’ exercise of Section 7 rights, such as: noncompete clauses; no solicitation clauses; no poaching clauses; broad liability releases and covenants not to sue that may go beyond the employer and/or may go beyond employment claims and matters as of the effective date of the agreement; cooperation requirements involving any current or future investigation or proceeding involving the employer as that affects an employee’s right to refrain under Section 7, such as if the employee was asked to testify against co-workers that the employee assisted with filing a ULP charge.

This memo, while undoubtedly part of a current trajectory and trend of the NLRB, clearly went further than the underlying McLaren Macomb matter, inasmuch as that case pertained to whether the employer violated Sections 7 and 8(a)(1) of the National Labor Relations Act by offering a severance agreement to 11 bargaining unit employees it permanently furloughed (without notice) that contained clauses requiring that the employees not disparage the employer, and to keep all matters pertaining to the employer and the agreements confidential.

There was nothing in the decision pertaining to nonsolicitation, poaching, or noncompetes.

Yet, seeing an opening, the NLRB's General Counsel took the opportunity to opine on other areas of potential concern.

As noted in the accompanying video, I don't see how noncompete clauses, no solicitation clauses, or no poaching clauses neatly falls within the ambit of protecting workers' ability to unionize and protect their rights. And it's certainly foreseeable that this will be clarified in the near future with litigation that is almost certain to come as a result.

Jonathan Cooper
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Non-Compete, Trade Secret and School Negligence Lawyer