Labor & Employment Law Daily Wrap Up, EXPERT INSIGHTS—NLRB’s General Counsel identifies the Biden-era cases she wants overturned: roadmap for employers, (Aug 31, 2026)

By James A. Holt, Joshua D. Nadreau, and Joshua S. Smith of Fisher Phillips, LLC

An August 26 memorandum provides a roadmap showing exactly which rules she wants changed.

The National Labor Relations Board’s top lawyer just identified the specific cases from the prior administration that she wants the Board to overturn, giving employers a sneak peek into what they can expect to unfold in the coming months. General Counsel Crystal Carey’s August 26 memorandum provides a roadmap showing exactly which rules she wants changed, from severance agreements and work rules to captive-audience meetings and card-based bargaining orders. Here’s what the memo says and what it means for your workplace.

Quick Background

As we have recently covered, the newly constituted Board now has the votes needed to revisit the legal standards built during the Biden administration. General Counsel Memo 26-04, released on August 26, now specifically tells us which precedents the GC is actively working to dismantle and through which cases.

The General Counsel sets an agenda for what the agency will pursue, so this memo is particularly instructive. But she can’t change Board precedent by memo. Until the Board itself rules on such cases, the existing decisions under the prior administration remain good law. Regions will continue to investigate and prosecute cases under current standards until the cases are overturned.

Precedents Already Targeted by the General Counsel

The memo identifies several key precedents that the General Counsel will ask the Board to overrule:

• Severance agreements (McLaren Macomb). The current standard places significant restrictions on the use of confidentiality and non-disparagement provisions in agreements and makes it unlawful for an employer to even offer a severance agreement containing broad confidentiality or non-disparagement provisions that could chill employees’ rights, regardless of the circumstances. The General Counsel is arguing to overrule it, which could restore employers’ ability to use these common provisions.

• Work rules (Stericycle). This decision made facially neutral handbook rules presumptively unlawful if a reasonable employee could interpret them to limit protected activity, a standard that has put countless routine policies at risk. The General Counsel is arguing to return to a more balanced approach.

• Captive-audience meetings (Amazon.com Services). The Board recently held that employers may not require employees to attend meetings where the employer shares its views on unionization. The General Counsel is urging the Board to return to the decades-old rule that permitted these mandatory meetings.

• Consent orders (Metro Health). The General Counsel is asking the Board to overturn the precedent limiting an employer’s ability to resolve cases through consent orders.

• Predictions about unionization (Siren Retail Corp.). The General Counsel rejects the current standard restricting what employers may lawfully tell employees about the consequences of unionizing and will argue to reinstate a more permissive standard.

• Waiver of the right to bargain (Endurance Environmental). In 2024, the Board overturned a balanced standard that required evidence of a clear, unmistakable waiver before employers were permitted to make workplaces changes without negotiation. The General Counsel intends to urge a return to a “contract coverage” approach that gives employers more latitude to act under existing contract language without further bargaining.

Additional Targets on the Horizon

The memo also flags precedents the General Counsel intends to challenge when the right case arises:

• Card-based bargaining orders (Cemex). This is perhaps the most consequential. The current rule can force an employer to recognize and bargain with a union, even without a secret-ballot election, if the employer fails to promptly petition for one after a demand. The General Counsel calls this contrary to Supreme Court precedent and intends to seek a return to the traditional election-based framework.

• Duty to bargain before making changes (Wendt and Tecnocap). The General Counsel wants to relax the requirement that, during contract negotiations, employers bargain over every single issue, including those covered by existing practice or prior contract language.

• Enhanced (“consequential”) remedies (Thryv). The current rule expands make-whole relief to include a wide range of “direct or foreseeable” financial harms beyond traditional back pay. Multiple federal appeals courts have already rejected it, and the General Counsel intends to ask the Board to return to the pre-Thryv standard.

• Protected concerted activity (Lion Elastomers). The General Counsel wants to reverse precedent that expanded protections for an employee’s abusive or offensive conduct and broadened what counts as protected concerted activity.

• Union dues and objector fees (Kroger) and post-contract dues checkoff (Valley Hospital). The General Counsel also plans to target precedents affecting how unions must handle objector fees and whether an employer’s dues-checkoff obligation survives contract expiration.

What Should Employers Do?

• Keep complying with current law. All of the cases described above are still in force. Continue to draft severance agreements, handbook policies, and campaign communications to satisfy today’s standards.

• Audit your severance and confidentiality templates. If these precedents fall, you may regain flexibility. But until then, keep confidentiality and non-disparagement language narrowly tailored.

• Revisit your handbook. A review now under the current Stericycle standard protects you today and positions you to adjust quickly if the standard changes.

• Plan your union-response strategy. With Cemex squarely in the General Counsel’s sights, understand your obligations if a union demands recognition and be ready to act within the short window the current rule allows.

• Watch the vehicle cases. The General Counsel’s memo tells you what you should be tracking. We are monitoring each of the identified cases and will report developments as they happen. The best way you can stay up to speed is by subscribing to Fisher Phillips’ Insight System to get the most up-to-date information direct to your inbox.

Conclusion

If you have questions about any of the precedents discussed above, please contact your Fisher Phillips attorney, any attorney in our Labor Relations Group, or the authors of this Insight.

James A. Holt,

Joshua D. Nadreau, and Joshua S.

Smith Fisher Phillips, LLC

URL: https://www.fisherphillips.com/

Attorneys: (Fisher Phillips).

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