Labor & Employment Law Daily Wrap Up, EXPERT INSIGHTS—NLRB rescinds 29 General Counsel memos, marking a shift in labor policy, (Apr 4, 2025)

Law Firms Mentioned:Honigman

Organizations Mentioned:Morgan Lewis & Bockius, LLP

By Honigman of Honigman

The National Labor Relations Board provides legal guidance and preludes its enforcement priorities through memoranda issued by its General Counsel. Last month, Acting General Counsel William Cowen—appointed by President Donald Trump following the dismissals of Jennifer Abruzzo and her deputy Jessica Rutter—issued GC Memorandum 25-05, rescinding 29 previous general counsel memoranda and initiating a review of others for possible withdrawal. On March 25, 2025, President Trump nominated Crystal Carey, a Morgan Lewis labor law attorney, to serve as the new General Counsel, as Acting General Counsel Cowen works to reshape the NLRB's priorities. If confirmed by the Senate, Carey is expected to further cement the administration's employer-friendly stance and continue the agency's shift in policy direction.

Memos Rescinded

Cowen's decision to revoke memos addressed a range of issues, including protected concerted activity, settlement practices, and employer contract provisions. By rolling back these directives, Cowen signaled a return to more traditional interpretations of the National Labor Relations Act (NLRA), a move that is likely align with the priorities of an employer-friendly NLRB.

The following directives, which previously guided NLRB enforcement priorities and regional decision-making, have been formally rescinded under GC Memo 25-05:

GC 21-02: This memo, which had revoked directives from former General Counsel Peter Robb on employer policies like handbook rules, decertification petitions, fair representation charges, and deferral processes, has itself been rescinded.
GC 21-03: Focused on broadening the definition of protected concerted activity (PCA), this memo had significantly expanded the scope of what was considered protected under the NLRA. The memorandum asserted that discussions about workplace conditions, wages, job security, health and safety, and racial discrimination should be considered PCA by default, even when these conversations were not directly tied to immediate workplace issues, consisted solely of preliminary discussions among employees, or involved a single individual speaking while others simply listened.
GC 21-04: This memo, issued by General Counsel Jennifer Abruzzo, reversed several directives in favor of pro-employee interpretations. The memo highlighted key initiatives she intended to pursue, including expanding the interpretation of protected concerted activity, revisiting past decisions that limited employee rights, and seeking stronger remedies for unfair labor practices.
GC 21-08: Promoting the classification of college athletes as employees under the NLRA, this directive challenged the traditional "student-athlete" designation. With its rescission, the NLRB is stepping away from advocacy on this front.
GC 22-06 and GC 25-02: These memos established rigid guidelines for ULP case settlements, requiring "full remedies" that extended beyond the immediate dispute. Regional offices were often constrained from accepting settlements that didn't include broad public notices or other punitive measures. The rescission offers regions greater flexibility to negotiate practical settlements without overreach.
GC 23-02: Addressing electronic monitoring and algorithmic management, this memo heightened scrutiny of employer surveillance.
GC 23-04: This memo provided detailed guidance on cases involving PCA, strikes, and information requests. Its rescission restores autonomy to regional offices when handling these matters.
GC 23-05: This memo applied the NLRB's McLaren Macomb decision to restrict nondisparagement and confidentiality clauses in severance agreements. While McLaren Macomb remains Board precedent, the rescission allows regional offices to exercise more discretion in applying that standard.
GC 23-08 and 25-01: This memo criticized noncompete agreements as unlawful under the NLRA, arguing that they restricted employees' ability to find alternative work. Similarly, GC 25-01 targeted "stay-or-pay" provisions, which required employees to repay training costs if they left before a set period.
GC 24-04: Expanding the use of comprehensive remedies in ULP cases, this memo required employers to provide broad, public-facing relief for all employees harmed as a result of an unlawful work rule, not just those named in the ULP charge.
GC 24-05: This memo had guided regions on pursuing Section 10(j) injunctions for labor violations.
GC 25-02: Previously, private settlements required NLRB oversight to ensure "public rights" were protected. The rescission of this memo reduces regulatory interference in private resolutions of ULP charges.

The rescission of these memos signals a more employer-friendly approach to contract enforcement. While state laws and other regulations will still apply, the NLRB will likely take a less aggressive stance on these provisions.

Looking Ahead

These rescissions mark a clear break from the previous administration's labor-friendly policies, focusing on reducing case backlogs and interpreting the NLRA in a way that aligns more closely with employer interests. The nomination of Crystal Carey further reinforces this pro-business approach.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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