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The National Labor Relations Board (NLRB or Board) spent most of 2025 without a quorum. It recently got additional members confirmed by the Senate, clearing the way for it to finally start issuing potentially precedent-setting (or changing) decisions.
On the heels of this, the NLRB's top lawyer, Crystal Carey, just issued a memo on Aug. 26 previewing her stance on areas of labor law she may seek to change.
According to a press release from the agency: “The General Counsel explains her positions challenging recent Board precedents and provides direct guidance to filings that demonstrate her views in greater detail. She also highlights controversial decisions that she hopes, in the future, to argue against before the Board.”
The memo itself highlights a number of issues Carey is seeking to have the NLRB revisit, including:
- Severance Agreements - In 2023, the NLRB issued a ruling that held certain provisions in severance agreements (e.g., confidentiality) can violate the National Labor Relations Act (NLRA).
- Work Rules - In another 2023 decision, the NLRB announced a new legal standard that found many common employer policies (e.g., being respectful in the workplace, prohibitions on the use of recording devices, etc.) violate labor law.
- Captive Audience Meetings - In 2024, the NLRB overruled more than 70 years of precedent and held employers violate the NLRA if they require employees to attend meetings where employers discuss their views on unions.
- Bargaining Orders - In 2023, the Board issued a ruling that lowers the standard significantly for a union to receive a “bargaining order” as a remedy for alleged labor violations during a union campaign. A bargaining order requires a company to recognize and negotiate with a union even if the employees voted to reject union representation.
These are big-ticket items many employers have been waiting to see if and when the agency may take a different position on than under the prior administration. The memo offers no predictions as to when or if the law on these issues may change, but it signals efforts are underway. Stay tuned to see how this all plays out.
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