On August 26, 2026, General Counsel for the National Labor Relations Board (“Board”) Crystal S. Carey issued Memorandum GC 26-04, signaling that many of the employee-friendly precedents adopted during the Biden years are squarely in the crosshairs.
While a GC memo does not change the law, it is a reliable indicator for where Board doctrine is heading. The memo identifies several Biden-era precedents the General Counsel is working to unwind, including, for example:
- Severance agreements — McLaren Macomb (2023): This decision made broad confidentiality and non-disparagement clauses in severance agreements presumptively unlawful. Carey is arguing to overrule it, which would restore employers’ latitude to use standard confidentiality and non-disparagement language.
- Work rules and handbooks — Stericycle (2023): This standard made facially neutral work rules (such as “don’t engage in behavior that lowers employee morale”) unlawful if an employee could read them as chilling protected activity. (An administrative law judge recently ruled such a morale rule is unlawful.) Carey is arguing to overturn it, easing pressure on common confidentiality, social media, and civility policies, and bringing back common sense.
- Captive-audience meetings — Amazon.com Services (2024): The current rule bars employers from requiring employees to attend meetings where the employer expresses its views on unionization. Carey urges a return to the longstanding Babcock & Wilcox (1948) standard permitting mandatory meetings.
- Predictions about unionization — Siren Retail / Starbucks (2024): Carey has broken from her predecessor’s more restrictive approach to employer statements about the consequences of unionizing. She will urge reinstatement of the more permissive Tri-Cast (1985) standard.
- Dress codes — Tesla (2022): The Tesla decision required employers to prove “special circumstances” to justify any interference with employees displaying union insignia, even through a facially neutral uniform or dress-code policy. Carey asks the Board to reinstate Wal-Mart Stores (2019), giving employers more room to enforce dress-code policies.
- Waiver of the right to bargain — Endurance Environmental Solutions (2024): Endurance Environmental Solutions returned to the “clear and unmistakable waiver” standard, under which a general management-rights clause is insufficient to permit unilateral changes. Carey has flagged this for reversal in favor of the MV Transportation (2019) “contract coverage” standard. That approach gives broad management-rights clauses more weight when making unilateral changes.
- Duty to bargain over changes — Wendt and Tecnocap (2023): These decisions require bargaining over changes even where longstanding past practice would justify the action. Carey intends to challenge them as impediments to routine contract administration.
- Enhanced remedies — Thryv (2022): This expanded the Board’s make-whole remedy to include employees’ direct or foreseeable financial harms. Carey wants it reconsidered, noting that the Fifth Circuit has vacated the Thryv remedy and that it has faced repeated court challenges, even as the Board continues to treat it as valid precedent outside the Fifth Circuit.
These would all be positive changes for employers. But what does the Memorandum mean in practice? Change is coming, but not yet. Regions will keep investigating and prosecuting under existing Board law until the NLRB issues new rulings that will likely reflect the GC’s priorities. This is a moment to prepare, not to relax. Maintain policies and procedures compliant with current Board law, but monitor key developments and work closely with your labor attorney to position your operations to become compliant with anticipated law.