Articles

Employment Law Update: Rescinding of General Counsel Memos Signals Policy Changes Ahead for NLRB

Date: February 27, 2025
A change in presidential administrations generally results in a wide array of new developments for federal agencies. That is particularly true for the National Labor Relations Board, which has broad jurisdiction over union organizing disputes and related labor law issues. The five members of the NLRB are appointed by the President, and thus a change in the party controlling the executive branch is typically followed by a reversal of policy positions reflected in decisions issued while a majority of the Board consisted of members appointed by the prior administration. Because NLRB members are appointed for five-year terms, there is often a delay between the time a new President takes office and when decisions of the Board begin to reflect the change in administration. 
 
An early reflection of the change in policy direction is often seen in actions by the NLRB’s General Counsel, also appointed by the President. The General Counsel serves as the chief prosecutor with regard to unfair labor practice claims that are administered by the agency and ultimately adjudicated by the five-member Board. The General Counsel also has a significant role in shaping the enforcement priorities and the policies of the NLRB through written guidance known as the General Counsel Memoranda.  
 
On January 27, 2025, President Trump terminated the NLRB’s previous General Counsel, Jennifer Abruzzo. On February 3, the President appointed William Cohen as the Board’s new acting General Counsel. Mr. Cohen had previously held a number of roles at the NLRB, including serving as a Board member in 2002. 
 
Following his appointment, Mr. Cohen issued a General Counsel Memorandum that rescinded more than a dozen General Counsel Memoranda that had been issued since 2021. Among the Memoranda that were rescinded under the February 14 Memorandum were:
 
  • Confidentiality and Non-Disparagement Clauses: GC 23-05, which stated the previous General Counsel’s assessment that the use of confidentiality and non-disparagement clauses could violate the Act by imposing on the right of former employees to engage in speech protected under the Act;
  • Non-Competes: GC 23-08, which stated the previous General Counsel’s view that non-competition agreements between employers and employees are inherently inconsistent with the provisions of the National Labor Relations Act due to their potential to interfere with an employee’s exercise of rights protected under the Act;
  • “Stay or Pay” Agreements: GC 25-01, which concluded that the terms of the Act prohibit the use of certain ‘stay-or-pay’ agreements under which an employee is required to reimburse an employer for certain amounts (such as training expenses paid by the employer or sign-on bonuses previously paid to the employee) in the event the employee resigns from employment within a defined time period;
  • Employee Monitoring: GC 23-02, which articulated enforcement priorities with regard to the application of workplace technologies that monitor employee activities in ways that might interfere with the exercise of rights protected by the Act; and
  • Remedies Available: GC 24-04, which had set forth guidelines for NLRB staff as to the remedies that should be sought when settling or litigating claims involving certain categories of alleged violations of the Act.
 
The February 14 General Counsel Memorandum – and its choice of which previous Memoranda to rescind – is an early indication that the new General Counsel will shift the priorities articulated during the prior administration, which had sought to aggressively expand the Board’s reach in ways favorable to organized labor. 
 
The future direction of the NLRB will have significant practical implications for employers with regard to a host of workplace issues, regardless of whether or not the employer’s own employees are unionized. Employers are encouraged to consult with legal counsel to ensure that their policies are consistent with the provisions of the National Labor Relations Act, and the evolving interpretations and changes that will come with the new General Counsel and the eventual appointment of new Board members. 
The information contained here is not intended to provide legal advice or opinion and should not be acted upon without consulting an attorney. Counsel should not be selected based on advertising materials, and we recommend that you conduct further investigation when seeking legal representation.