The NLRB under the Trump administration is expected to implement significant changes to labor policy. As expected, on February 14, 2025, the newly appointed National Labor Relations Board (“NLRB”) Acting General Counsel William Cowen rescinded a series of memoranda that had been issued by the former NLRB General Counsel, Jennifer Abruzzo. Cowen also announced his intent to issue new guidance.
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A February 14, 2025 memorandum from Cowen rescinded an array of NLRB General Counsel memoranda that had been issued by his predecessor. In the memorandum, Cowen stated that the rescissions were intended to address “an ever-increasing workload” that is “no longer sustainable” for NLRB staff to manage. The rescinded memoranda include:
- GC 23-05 (“Guidance in Response to Inquiries about the McLaren Macomb Decision”). This memorandum discussed the NLRB’s ruling in McLaren Macomb regarding the extent to which non-disparagement and confidentiality provisions in employee separation agreements can interfere with employees’ rights to organize under the National Labor Relations Act (“NLRA”). Although the recission does not overturn the McLaren Macomb decision, which we previously discussed here, it does obviate General Counsel Abruzzo’s prior guidance on that decision, including her guidance that “savings clause[s] or disclaimer language . . . would not necessarily cure overly broad [confidentiality or non-disparagement] provisions.”
- GC 23-08 (“Non-Compete Agreements that Violate the National Labor Relations Act”). This memorandum, which we previously discussed here, takes the view that, except in limited circumstances, “non-compete agreements between employers and employees [that] prohibit employees from accepting certain types of jobs and operating certain types of businesses after the end of their employment” interfere with employees’ rights to organize under the NLRA.
- GC 25-01 (“Remedying the Harmful Effects of Non-Compete and ‘Stay-or-Pay’ Provisions that Violate the National Labor Relations Act”). This memorandum asserts that “stay-or-pay” agreements—i.e., agreements that require an employee to pay back certain benefits (such as sign-on bonuses, training repayment agreement provisions (TRAPS), relocation expenses, or tuition and educational reimbursements) in the event the employee does not remain employed with the employer for a certain period of time—are presumptively unlawful under the NLRA. Our previous discussion of this memorandum is available here.
- GC 21-06 (“Seeking Full Remedies”) and GC 21-07 (“Full Remedies in Settlement Agreements”). These memoranda instructed the NLRB Regions to seek the “full panoply of remedies available” in unfair labor practice cases, and to craft settlement agreements that “ensure the most full and effective relief.”
- GC 24-01 (“Guidance in Response to Inquiries about the Board’s Decision in Cemex Construction Materials Pacific, LLC”). This memorandum provided guidance concerning the NLRB’s 2023 decision to adopt a new union-friendly recognition standard for employers confronted with a demand for recognition of a union.
Going forward, employers can expect that the NLRB under the Trump administration will continue to implement significant changes to labor policy, including a shift in its enforcement priorities. Those changes may take time, as the NLRB does not yet have a quorum, and a new general counsel has not yet been confirmed.
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