Navigating Noncompetes in a Shifting Legal Landscape

On May 30, 2023, the General Counsel of the National Labor Relations Board issued a memo proclaiming that virtually all employee noncompetes are illegal under the NLRA. Her pronouncement follows the January 5, 2023 announcement by the Federal Trade Commission that it planned to issue a rule to ban all employee noncompetes and comes on the heels of Minnesota’s state noncompete ban.

The NLRB’s memo fundamentally changes the landscape for restrictive covenants and trade secret protection-protections that have been developed and refined by the states for over 200 years. Not only are employers now unable to safely use or enforce existing noncompete agreements for a vast swath of their employees, but the protections offered by other agreements like no-recruit covenants and nondisclosure agreements subject to the memo are at risk.

Lawyers for employers and employees need to understand these developments to advise clients on how to achieve compliance and protect their legitimate business interests. Understand what types of restrictive covenants are available, what they protect, and when they can-and cannot-be used. Learn practical tips for drafting noncompetes, and how to handle their enforcement and defense. Find out how to manage the evolving landscape of changing laws and judicial considerations.