NLRB Clears Non-Competes After Policy Flip

Major shift: NLRB Division of Advice dismissed all charges against Biotricity’s non-compete and confidentiality agreements. This follows the General Counsel’s rescission of the prior memo that branded non-competes as union-busting.

What happened: Two former employees left for a competitor. Biotricity sued for breach of non-compete, confidentiality, and non-solicitation agreements. Employees filed NLRB charges claiming retaliation for protected activity.

The ruling: Non-competes are lawful. Period. The NLRB found: 1) the non-compete language does not restrict Section 7 rights; 2) Confidentiality clauses (including employee lists, payroll) are reasonable business protections in competitive industries; 3) Lawsuits to enforce non-competes are not retaliatory or preempted by the NLRA; and 4) Non-solicitation and non-disparagement provisions do not violate the Act

Under prior Biden’s NLRB General Counsel’s policy, employers faced liability just for *having* non-competes. Now? Enforcing them is a legitimate business right.

Employers can protect trade secrets, customer lists, and competitive advantage—without NLRA exposure. This is a major recalibration favoring employer flexibility.