The landscape of labor relations is poised for significant shifts, and employers need to be ready. With the return of a Trump administration, the National Labor Relations Board (NLRB) is undergoing substantial changes that could directly impact your business. Let’s break down the key areas you should be monitoring.
A New NLRB? Board Composition and Legal Battles
Just a week after taking office on January 27, 2025, President Trump fired Gwynne Wilcox, who was a member and former head of the National Labor Relations Board (NLRB), even though her term wasn’t supposed to end until August 2028. This made President Trump the first president to ever remove a sitting member of this Board. The very next day, the NLRB announced that President Trump fired the General Counsel and later an interim General Counsel.
The NLRB is now left with a temporary General Counsel and only two members of the Board. With three open spots and not enough members present, the Board does not have a quorum and cannot make any official decisions. Meanwhile, the firing of Wilcox has created legal questions that will likely end up in the U.S. Supreme Court. On March 6, a judge in Washington, D.C. ordered President Trump to put Wilcox back on the Board as the third member. President Trump appealed this decision, and on March 28, a court of appeals temporarily blocked the order to reinstate Wilcox. However, on April 7, the full Court of Appeals reversed that temporary block, allowing Wilcox to return to her position while the court continues to consider the issue, which means the Supreme Court will probably have the final say.
The White House says they are working to fill the two empty positions, but the current head of the Board, Marvin Kaplan, has said that delays in the Senate will likely push this back by several months. On March 25, President Trump nominated Crystal Carey to be the permanent General Counsel (General Counsel), but the Senate also needs to approve this. In the meantime, all companies covered by the National Labor Relations Act (NLRA) must still follow its rules, even though the guidance from the Board and its General Counsel is constantly changing.
Importantly, on February 14, the temporary General Counsel, Acting GC Cowen, rescinded over 30 instructions that President Biden’s General Counsel had issued. Even though these instructions aren’t actual laws, they show how the General Counsel plans to handle cases and guide the NLRB’s regional offices on how to enforce the NLRA.
Due to these changes and future uncertainty, here are some important NLRB changes that all employers should know about:
Reversing Course: Key Policy Changes to Watch
Acting General Counsel William Cowen has already signaled a shift by rescinding several key memoranda. This includes changes relating to:
- Non-Compete and Severance Agreements: The rescinding of GC 23-08, GC 25-01, and GC 23-05 indicates a potential return to allowing broader confidentiality, non-disparagement, and non-compete provisions in severance agreements. This is a significant reversal of the McLaren Macomb decision.
- Independent Contractor Classification: Expect a review and potential reversal of the current standards used to determine independent contractor status. This could significantly impact businesses that rely on contract workers.
- Union Recognition and Bargaining: A Trump-appointed Board is likely to revisit standards for voluntary union recognition and the duty to bargain, potentially making it more challenging for unions to gain recognition.
- Workplace Rules and Handbook Policies: Decisions regarding workplace rules and handbook policies that might “chill” workers’ rights are also on the table for review.
- Unilateral Changes in Unionized Workforces: The standards for unilateral changes to job requirements and working conditions in unionized workplaces are also going to be reviewed.
- Captive-Audience Meetings: The legality of employers conducting “captive-audience” meetings during union elections may be revisited.
- Employer Comments on Unionization: The rules around what employers can say about the potential consequences of unionization are also subject to possible revisions.
What Should Employers Do?
Given these potential changes, proactive steps are crucial. Here’s a checklist:
- Review and Update Policies: Carefully examine your employee handbooks, non-compete agreements, and severance agreements to ensure they align with potential new NLRB standards.
- Manager Training: Equip your managers with the knowledge they need to navigate these changes. Provide training on updated NLRB standards, union tactics, and election procedures.
- Stay Informed: Follow legal developments closely and consult with experienced labor counsel to ensure your business remains compliant.
The evolving landscape of labor law requires vigilance and adaptability. By staying informed and taking proactive steps, you can help your business navigate these changes successfully.
Disclaimer: This blog post provides general information and should not be considered legal advice. Consult with legal counsel for advice tailored to your specific situation.