Noncompete clauses in employment and severance agreements violate the National Labor Relations Act except in limited circumstances, according to a memo released Tuesday by the general counsel for the National Labor Relations Board. However, the US Chamber of Commerce has already come out against the idea. The memo follows a separate effort by the Federal Trade Commission to prohibit noncompetes overall, which has been met with concern by some in the staffing industry.

The NLRB general counsel’s memo this week said noncompetes can interfere with Section 7 protections that allow employees to organize, join unions and collectively bargain.

“Noncompete provisions reasonably tend to chill employees in the exercise of Section 7 rights when the provisions could reasonably be construed by employees to deny them the ability to quit or change jobs by cutting off their access to other employment opportunities that they are qualified for based on their experience, aptitudes and preferences as to type and location of work,” NLRB General Counsel Jennifer Abruzzo write in the memo.

“This denial of access to employment opportunities interferes with workers engaging in Section 7 activity in a number of ways,” Abruzzo continued. “For example, workers know that they will have greater difficulty replacing their lost income if they are discharged for exercising their statutory rights to organize and act together to improve working conditions; their bargaining power is undermined in the context of lockouts, strikes and other labor disputes; and their social ties and solidarity leading to improvements in working conditions at workplaces are lost as they scatter to the four winds.”

It does not matter if an employee contractually agreed to infringement of their Section 7 rights because employees cannot waive those rights, according to the memo.

However, the US Chamber of Commerce in a press released called the memo an “extreme and blatantly unlawful overreach.”

Right now, the general counsel’s memo is just theory; the NLRB will have to accept the general counsel’s filing in a lawsuit in a case they are considering now — called Stericycle — in order to make it official policy, according to the US Chamber of Commerce.

“In the meantime, however, [the general counsel] can issue unfair labor practice charges against employers that have noncompetes, and it will be up to the employer to decide if they just wish to settle or appeal those charges up the line. Eventually, one of these charges is likely to wind up in federal court,” the US Chamber of Commerce said in a release. “The notion that an individual is not free to waive a right or willingly enter into a contract has not been met with much enthusiasm in recent years, but the general counsel seems willing to bet that things will be different on this issue. Time will tell if that bet is a good one.”

Separately, the Federal Trade Commission is pursuing a prohibition on noncompetes, and that effort has raised concerns in the staffing industry. Meanwhile, attorneys general in 17 states and the District of Columbia have come out against noncompetes.