02-25-2025
On Valentine’s Day, the NLRB’s acting general counsel revoked many of the guidance memos issued by the previous general counsel. The guidance memos, while nonbinding, outlined for the public how the board would likely view certain issues. These revocations signal to employers that the NLRB will proceed in a different direction under the current administration.
During the prior administration, the NLRB general counsel Jennifer Abruzzo issued memos addressing restrictive covenants, workplace surveillance programs, and NCAA athletes as employees. In 2023, the general counsel wrote a memo asserting that non-compete agreements interfered with employees’ exercise of rights under Section 7 of the NLRA and should be “narrowly tailored to specific circumstances justifying the infringement of employee rights.” In another memo, the former general counsel stated that “stay or pay” provisions (which require employees to repay an employer if they leave before a set date) were “presumptively unlawful.” The general counsel encouraged the NLRB to adopt a “make whole” approach to remedies and notify employees that they could be entitled to such relief. She also advocated for employers to pay legal fees and costs to employees subject to unlawful non-compete agreements. Since Abruzzo issued her guidance, the NLRB has not issued a decision addressing the lawfulness of non-compete and non-solicitation agreements.
Other rescinded memos included questions about workplace surveillance programs and AI used by employers that may interfere with employee rights under the NLRA and allowed for mail-in ballots because “COVID-19 is no longer a Federal Public Health Emergency.” Acting General Counsel William Cowen said the NLRB’s case backlog accounted for his decision to rescind these memos. Further changes to prior guidance are expected. Employers should consult legal counsel on how to proceed moving forward.