Abruzzo argues that the offer, maintenance, and enforcement of a non-compete that reasonably tends to chill employees from engaging in Section 7 activity violates the NLRA, unless it is narrowly tailored to special circumstances, justifying the infringement on employee rights. An employer’s desire to avoid competition, retain employees, or protect special investments in training employees is unlikely to justify an overly broad provision. However, a restriction on an individual’s managerial or ownership interests in a competing business or true independent contractor relationship may pass muster. If an employee has access to trade secrets or property information, employers can continue protecting such information.
Abruzzo's memo is not binding on the NLRB. For the law to change, a case must get before the NLRB, where Abruzzo will argue for the Board to follow her interpretation of the NLRA. She has already issued a complaint in hopes of getting this issue before the Board. Employers should be prepared for the possibility that non-compete agreements may become even more difficult to enforce.