In Memorandum GC 25-05, published on February 14, 2025, the Acting General Counsel of the National Labor Relations Board (“NLRB” or the “Board”), William B. Cowen (“Acting General Counsel”), rescinded thirty-one active memoranda published by the Biden-era NLRB General Counsel (“then-General Counsel”) between 2021 and the early 2025.
Memorandum GC 25-05, while not binding law, is directed at NLRB regional field staff to inform them of the Acting General Counsel’s enforcement goals and policies. The Memorandum explained that Acting General Counsel’s review of active General Counsel memoranda, necessitated by an unmanageable backlog of NLRB cases, revealed a need for the recissions.
The most notable rescinded memoranda and their impact are as follows:
- GC 21-03 Effectuation of the National Labor Relations Act Through Vigorous Enforcement of the “Mutual Aid or Protection” and “Inherently Concerted” Doctrines. Acting General Counsel rescinded this memorandum that stated the then-General Counsel’s intention to robustly enforce protection of employees’ Section 7 rights, vigorously prosecute retaliation cases against concerted employee conduct with a focus on factors favoring NLRA (“National Labor Relations Act” or the “Act”) employee protections, and application of the “inherently concerted” doctrine to employee discussions on aspects of workplace life (i.e. wage differentials, schedule changes, job security, workplace health and safety, and racial discrimination, etc.). This rescission will likely make it harder for employees to claim NLRA protections for certain workplace activity.
- GC 21-08 Statutory Rights of Players at Academic Institutions (Student-Athletes) Under the NLRA. Acting General Counsel rescinded the then-General Counsel’s position that athletic “Players at Academic Institutions” are “employees” under the NLRA. This rescission signals the NLRB will be less likely to support student-athletes’ “employee” status, and thus their efforts to unionize and collectively bargain.
- GC 23-02 Electronic Monitoring and Algorithmic Management of Employees Interfering. Acting General Counsel rescinded this memorandum which stated employer electronic monitoring and algorithmic management could be considered unlawful interference with employees’ rights to organize and bargain collectively and such advanced surveillance tech could potentially violate labor laws if they deterred employees from engaging in protected activity. This rescission will most likely allow companies to more easily monitor their employees with less legal scrutiny, which could potentially reduce workplace privacy for employees.
- GC 23-05 Guidance in Response to Inquiries about the McLaren Macomb Decision. While rescission of this memorandum does not reverse the application of McLaren Macomb, 372 NLRB No. 58 (2023), which changed long-standing labor law to restrict employers from using over-broad confidentiality and non-disparagement provisions in severance agreements to prohibit an employee from discussing negative aspects of the company, its rescission does indicate a potential for less scrutiny of such provisions by the Board, which would make it easier for employers to include them in severance agreements.
- GC 23-08 Non-Compete Agreements that Violate the National Labor Relations Act. Acting General Counsel rescinded the then-General Counsel’s opinion that most non-compete agreements in employment contracts and severance agreements likely violate the NLRA by restricting employees’ ability to exercise their Section 7 rights to organize and bargain collectively. This recission signals the NLRB may no longer pursue cases against employers who use non-competes with their employees, allowing companies to enforce such agreements with less scrutiny.
- GC 25-01 Remedying the Harmful Effects of Non-Compete and “Stay-or-Pay” Provisions that Violate the NLRA. Acting General Counselrescinds this memorandum which stated that “stay-or-pay” provisions in employment contracts, where an employee must repay certain funds to their employer if they separate from employment before a designated period, are often unlawful and violate Section 7 rights by potentially restricting an employee’s ability to seek new employment. This recission changes the federal framework regarding the enforceability of restrictive covenants, allowing employers to more easily enforce such provisions without fear of violating federal law.
Memorandum GC 25-05 makes clear that the new General Counsel of the NLRB will not enforce many of the interpretations of federal labor law that were supported by the previous administration and that further adjustments to NLRB enforcement are anticipated. This signals a major shift in labor policy by the Board toward more employer, business-friendly policies by reducing regulatory oversight and reversing the expansion of employee protections under the Act.
While Memorandum GC 25-05 is not binding law and it will likely take the Board some time to formally change precedent that was set during the Biden-era, employers should stay up to date on any new developments and the potential impact on their business.
Have questions about the effect of this memorandum? SWB can help.