On February 14, 2025, William B. Cowen, who is the Acting General Counsel for the National Labor Relations Board (“NLRB” or “Board”) released a memo, which rescinded prior memos issued by Jennifer Abruzzo, who served in the position during the Biden Administration. See Memorandum GC 25-05 (“GC Memo”). Memorandums issued by the General Counsel of the NLRB are not binding legal authority, but they do provide some guidance as to the likely direction of the Board.
The GC Memo rescinds a number of prior memorandums, including the following:
GC 23-05 Guidance in Response to Inquiries about the McLaren Macomb Decision (“Decision”). During the Biden Administration, the NLRB issued this Decision, which held that employers may not offer employees severance agreements that require employees to broadly waive their rights under the National Labor Relations Act. It will not be surprising if in the future there is action taken by the Board to reverse the Decision.
GC 23-08 Non-Compete Agreements that Violate the National Labor Relations Act and GC 25-01 Remedying the Harmful Effects of Non-Compete and “Stay-or-Pay” Provisions that Violate the National Labor Relations Act. The Biden Administration made it clear that it disfavored non-compete agreements as evidenced by actions taken by various federal agencies, including the Federal Trade Commission and these two memos issued by former GC Abruzzo. The recission of these memos indicates that this Board will most likely not issue decisions which are unfavorable to non-compete agreements.
GC 22-04 The Right to Refrain from Captive Audience and other Mandatory Meetings. Acting GC Cowen stated in his GC Memo that this memo “is rescinded as no longer relevant in light of the Board’s Decision in Amazon.com Services LLC, 373 NLRB No. 136. (2024)” (“Amazon Decision”). In the Amazon Decision, the Board held that Amazon violated the National Labor Relations Act by holding mandatory employee meetings to discuss its position in regard to union organization. What Amazon did is hold what are commonly referred to as “captive audience meetings”, which had been permissible for 75 years. It is likely that there will be an effort to have the Board reverse the Amazon Decision.
Acting GC Cowen, concluded his GC Memo with the following:
“I believe that it is incumbent upon all government leaders to continuously examine what we are doing and why we are doing it in order to explore ways to improve our service to the public. Thus, my review of our practices is ongoing, and I anticipate that further adjustments will be made as needed.”
Without question, in the future there will be more changes in employment law under the Trump Administration. The members of the firm’s employment and benefits section will continue to monitor these changes and will be glad to assist employers in understanding and complying with the applicable law.
