On June 26, 2026, the National Labor Relations Board’s (NLRB) Division of Advice released three memoranda that continue the current General Counsel's effort to unwind several of former General Counsel Jennifer Abruzzo's most employer-unfriendly enforcement positions. Together, they signal a more restrained approach to Section 7 rights and Board enforcement.
For California employers, however, the news comes with an important caveat: while federal labor law may be moving in a more employer-friendly direction, California law continues to impose significant independent restrictions on many of these same provisions.
A Retreat from McLaren Macomb?
When McLaren Macomb was decided in 2023, the Board dramatically expanded its scrutiny of separation agreements, including separation agreements involving non-union employees. McLaren-Macomb found that broadly worded confidentiality and non-disparagement provisions often unlawfully chill and therefore violate employees' National Labor Relations Act (NLRA) Section 7 rights.
The new Advice memoranda suggest the Division of Advice is no longer eager to stretch McLaren Macomb beyond its facts and will interpret it quite narrowly.
1. Post-Employment Non-Solicitation Clauses Get a Green Light
In BAYADA Home Health Care, the Division of Advice concluded that a separation agreement prohibiting a former employee from soliciting the employer's employees, clients, and business relationships after employment ended was lawful. Because the restriction applied only after the employment relationship concluded, Advice reasoned that it did not interfere with employees' ability to engage in protected concerted activity during employment.
The memorandum also upheld a standard cooperation clause requiring former employees to assist with legal or investigative matters, concluding that it did not reasonably interfere with Section 7 rights.
2. Noncompete-Related Theories Continue to Fade
In Biotricity, Advice rejected allegations that maintaining a noncompete agreement violated the NLRA, explaining that, following the rescission of GC Memorandum 23-08, noncompete agreements generally do not violate Section 8(a)(1). The memorandum also declined to challenge related state court litigation enforcing the agreement, finding no retaliatory motive or unlawful objective.
Notably, Advice also declined to pursue claims involving certain non-disparagement and non-solicitation provisions where doing so would not "effectuate the purposes and policies of the Act" because the employer had never attempted to enforce those provisions.
3. Narrower View of Protected Concerted Activity
In Sutherland Global Services, Advice concluded there was insufficient evidence that an employer unlawfully retaliated when it changed overtime approval procedures or terminated an employee for secretly recording a meeting with a supervisor. Advice emphasized that merely recording a meeting is not automatically protected activity—the recording itself must further group action or mutual aid, and the evidence did not support that conclusion here.
What Does This Mean for California Employers?
These memoranda are welcome news for employers governed by the NLRA. They indicate that the current General Counsel is unlikely to pursue many of the expansive legal theories that characterized the previous administration.
But employers in California should resist the temptation to dust off old agreement templates.
California law continues to impose independent restrictions that these Advice memoranda do not change, including:
- California's broad prohibition on most employee noncompete agreements under Business and Professions Code section 16600.
- Aggressive state enforcement of unlawful restrictive covenants through recent legislation, including AB 1076 and SB 699 (which make most noncompete agreements void regardless of where they are signed and create new avenues for employees to challenge unlawful restrictive covenants).
- Ongoing scrutiny of confidentiality, non-disparagement, and other post-employment restrictions under California employment statutes and common law. See e.g., Cal. Gov’t Code § 12964.5 and Cal. Code of Civ. Proc. § 1001.
In other words, an agreement that may now draw less scrutiny from the NLRB could still create significant exposure under California law.
The Bottom Line
The June 26 Advice memoranda confirm that the NLRB's enforcement priorities are continuing to shift away from the aggressive positions advanced during the Biden/Abruzzo era.
For California employers, however, federal labor law is only half the equation. Before revising separation agreements, restrictive covenant provisions, or other employment agreements, employers should ensure they remain compliant with California's far more restrictive statutory framework.
Employers with multistate operations should consider reviewing separation agreements and restrictive covenant templates now. While these memoranda reduce NLRA risk, California-specific versions will often remain necessary to avoid running afoul of state law.
