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NLRB Scrutiny of Restrictive Covenants, NDAs, and Non-Disparagement Provisions: Recent Developments and Best Practices

Remaining Compliant While Protecting Company Trade Secrets and Confidential Information

Recording of a 90-minute CLE video webinar with Q&A

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Conducted on Wednesday, August 30, 2023

Recorded event now available

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This CLE webinar will address recent NLRB activity targeting confidentiality, non-disparagement, and noncompete provisions in employment and severance agreements and the impact on employers. The panelists will discuss considerations for counsel and their clients when determining whether to use restrictive covenants and best practices to minimize the risk of committing an unfair labor practice (ULP).


Recent events demonstrate the NLRB's increased scrutiny of the use of confidentiality, non-disparagement, and noncompete provisions in employment and severance agreements. The NLRB and its General Counsel have asserted that these provisions may violate employees' Section 7 rights by chilling concerted activity and should not be used except in limited circumstances. Union and non-union employers are affected.

In the McLaren Macomb decision issued on Feb. 21, 2023, the Board targeted the use of confidentiality and non-disparagement clauses in severance agreements unless they are narrowly tailored and have legitimate business justifications. The Board indicated that proffering a severance agreement with overly broad provisions, even without attempting to enforce it, could constitute a ULP.

Additionally, the NLRB's General Counsel released a guidance memo on May 30, 2023, describing how the use of noncompete provisions may also violate the NLRA. The General Counsel indicated that employers may face penalties for violations including inter-agency referrals where unlawful noncompete provisions may also violate other federal laws; and the use of the make-whole remedy where appropriate.

Listen as our expert panel discusses how companies and their counsel should weigh the risks of using restrictive covenants against the need to protect trade secrets and confidential information. The panelists will also describe best practices for remaining compliant and avoiding a ULP.



  1. NLRB's McLaren Macomb decision
  2. General Counsel's noncompete guidance memo
  3. The future of other restrictive covenant provisions such as non-solicitation clauses
  4. Weighing the risks and benefits of using restrictive covenants
  5. Possible consequences of noncompliance
    1. Inter-agency referrals
    2. Make-whole remedy
  6. Best practices for compliance
    1. Determining when and with whom to use restrictive covenants
    2. Reviewing current and former agreements
    3. Drafting compliant restrictive covenant provisions


The panel will address these and other key issues:

  • When is the use of restrictive covenants in employment and/or severance agreements appropriate?
  • What risks and benefits should counsel and their clients consider when determining whether to use restrictive covenants?
  • What are the possible consequences and penalties if an employer is found to have committed a ULP by using overly broad restrictive covenants?
  • Should companies continue to use other restrictive covenant provisions not yet directly targeted by the NLRB such as non-solicitation clauses?
  • What are best practices for remaining compliant while also protecting company confidential information and trade secrets?


Beck, Russell
Russell Beck

Beck Reed Riden

Mr. Beck is a business, trade secrets, and employee mobility litigator, nationally recognized for his trade secrets and...  |  Read More

Bindra, Amit
Amit S. Bindra

The Prinz Law Firm

Mr. Bindra focuses his practice on employment and executive agreements, noncompete, non-solicit and trade secret...  |  Read More

Chun, John
John H. Chun

Herrick Feinstein

Mr. Chun is a seasoned litigator with experience handling a wide range of complex commercial, restrictive...  |  Read More

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