On June 26, 2026, the National Labor Relations Board (NLRB) released three new Advice Memoranda. These memoranda explain why the NLRB’s Office of the General Counsel decided that the underlying unfair labor practice charges in three cases should not move forward.
Unlike formal Board decisions, Advice Memoranda do not create new law. Instead, they provide insight into how the General Counsel evaluates workplace disputes and can offer practical guidance for employers and HR professionals. In essence, they reflect the General Counsel’s view on the meaning and scope of the National Labor Relations Act (NLRA). These views sometimes change since they reflect the views of whoever is the General Counsel at any particular moment in time, and these memoranda are in many respects contrary to the prior General Counsel. The General Counsel is the NLRB’s chief prosecutor and is appointed by the President. The General Counsel decides which unfair labor practice charges will be prosecuted, and then it is up to the NLRB to decide whether the General Counsel properly applied the law and otherwise proved its case.
Each of these new memoranda and their significance is summarized below.
1. Biotricity
What happened?
This case involved provisions in non-compete and confidentiality agreements signed during employment and applied to employees during their employment and six months after employment ended. The employees quit and the employer sued them alleging breaches of the agreements. The non-compete agreement also included restrictions on soliciting the company’s employees and clients and required former employees to cooperate if the company became involved in future legal matters.
The General Counsel concluded these provisions were lawful because such agreements generally do not implicate rights protected under the NLRA. It also held that the confidentiality agreement covered highly sensitive business information, a scope not contrary to the Act’s protections. And finally, the General Counsel concluded that the lawsuit was not actionable under the Act since it did not seek to enforce provisions that violate the Act.
Why it matters
By issuing this memorandum, the General Counsel is directly vacating the prior General Counsel’s view on the meaning of the NLRB’s 2023 holding in McLaren Macomb. It suggests that carefully drafted employment and separation agreements can still include reasonable post-employment restrictions without violating federal labor law. Employers should continue to review separation agreements carefully, but this memorandum provides reassurance that not every post-employment restriction is problematic.
2. BAYADA Home Health Care
What happened?
The General Counsel reviewed allegations that the employer had violated employees’ rights under the National Labor Relations Act by including in a separation and release of claims agreement offered to a laid-off employee. The agreement provided that the employees will not solicit the employer’s employees, clients, or business partners, or provide services to a direct competitor of the employer. The agreement also provided that the former employees will cooperate, if needed, to help the employer resolve claims as they may arise.
The General Counsel concluded that since the provisions only applied to former employees, they did not interfere with the rights of employees under the NLRA.
Why it matters
Through this Memorandum, the General Counsel’s view that the holding in McLaren Macomb should be narrowly construed is significantly clearer and that fewer charges under the doctrine of that case will be litigated.
3. Sutherland Global Services
What happened?
An employee raised concerns about overtime pay, talked with coworkers about those concerns, and was later terminated after recording a workplace meeting without authorization. The employee claimed the company had retaliated against the employee for engaging in concerted activity as protected under the NLRA.
The General Counsel concluded there was not enough evidence to show the company understood the employee was acting on behalf of a group of employees rather than simply raising an individual concern. The evidence also did not show that the employee was fired because of protected workplace activity.
Why it matters
This memorandum is a reminder that—at least in the view of the current General Counsel—not every workplace complaint is considered protected under federal labor law. While employees generally have the right to discuss wages and working conditions with one another, there must also be evidence that the employer knew the employee was engaging in that type of protected group activity before a retaliation claim can succeed.
Key Takeaways
Taken together, these memoranda point to a practical and measured approach by the General Counsel.
- Evidence matters. The NLRB will not pursue cases unless there is enough evidence to support the alleged violation.
- Not every employee complaint is protected activity. The circumstances surrounding the complaint—and what the employer knew at the time—remain important.
- Well-written agreements still have value. Employers may continue to use narrowly tailored post-employment provisions in separation agreements, provided they do not interfere with employees’ rights while employed.
For employers and HR professionals, these memoranda are a reminder that thoughtful policies, careful documentation, and clear communication remain the best tools for reducing labor law risk. While Advice Memoranda do not establish binding legal precedent, they provide a useful window into how the NLRB’s Office of the General Counsel is currently approaching enforcement decisions.