New NLRB General Counsel Signals Sweeping Changes To Biden-Era Labor Precedent

Key Takeaways:

• NLRB General Counsel Crystal S. Carey has identified over a dozen Biden-era Board decisions she intends to challenge, signaling a sweeping pro-employer shift.
• GC Carey has already filed briefs seeking to overturn decisions on placing restrictions on severance agreements, work rules, captive-audience meetings, and other key issues.
• She has also announced her intent to target current rules on mandatory bargaining orders, enhanced remedies ordered in NLRB proceedings, and expanded protections for employee misconduct.

On August 26, 2026, the GC issued a memorandum identifying the cases in which she is asking the Board to overturn Biden-era precedent. Her agenda includes many major areas of labor law which expanded during the prior administration, and which may change rapidly. Employers should be prepared for a more favorable regulatory landscape in the near future.

Positions Already Taken

Severance Agreements. The GC has argued that employers should not violate the National Labor Relations Act for merely offering severance agreements with broad non-disparagement or confidentiality provisions. She has urged the Board to prohibit only severance agreements that contain an explicit, overly broad waiver of NLRA Section 7 rights, such as the right to engage in speech for workers’ mutual aid and protection.

Consent. The GC has requested that the Board reinstate the longstanding practice of allowing administrative law judges to approve “consent orders” (unilateral settlement offers made by a respondent) over the objections of the GC and the charging party. This would restore employers’ ability to resolve disputes efficiently, without having to obtain the GC’s approval.

Work Rules. The GC has argued in favor of restoring expanded latitude to maintain reasonable workplace rules — including commonplace handbook provisions— without the presumption that they chill Section 7 activity simply because an employee could theoretically read them that way.

Captive Audience Meetings. The GC has urged the Board to reverse the ban on captive-audience meetings, which are mandatory meetings where the employer expresses their view on unionization, seeking to restore the longstanding prior standard—which was in place dating back to 1948—permitting such meetings during paid working time.

Predictions on Impact of Unionization. She seeks to broaden employer latitude to communicate predictions about practical changes or potential business consequences of selecting union representation — so long as those statements are not framed as retaliatory threats.

Dress Codes. The GC has argued to remove the presumption of invalidity applicable to employer dress codes that limit union insignia. She has urged the Board to restore the prior balancing approach, which would allow employers to maintain reasonable size and appearance restrictions in customer-facing areas without needing to prove special circumstances, and would only require heightened justification for policies that outright ban union insignia.

Waiver of Right to Bargain. The GC has argued in favor of returning to employers’ rights to make unilateral changes under the “contract coverage” test. This would remove the requirement that any such action be specifically and unmistakably authorized by the CBA, giving management-rights clauses their teeth back and permitting more agile workplace management.

Anticipated Positions

The GC has also signaled that she intends to weigh in on additional issues when the opportunity arises, including arguments to:

• reinstate employers’ right to refuse recognition without an election and, before any bargaining order can issue, require a showing that the employer committed unfair labor practices so pervasive and severe that their effects could not be erased by traditional remedies and a fair rerun election was unlikely;
• expand employers’ ability to make unilateral changes during negotiations;
• overturn the current standard that requires unions to apprise fee-payers of the percentage of full dues they owe only after they object to membership—not before;
• expand employers’ right to discipline egregious misconduct during otherwise protected activity;
• end the requirement to continue honoring dues-checkoff after a CBA expires; and
• reduce employer exposure to financial remedies, in line with circuit court decisions that have rejected their expansion.

We are monitoring these developments closely. For guidance on how these changes may affect your workplace policies or labor strategy, please contact our Foley Hoag L&E group for support.