Labor & Employment Law Daily Wrap Up, NLRB NEWS—Advice Division releases memos on COVID hazard pay and no-poach agreements, (Aug 18, 2026)

By Brandi O. Brown, J.D.

The NLRB’s advice division released advice memos relating to hazard pay and no-poach agreements.

In the past few weeks, the NLRB’s Division of Advice released two memos—one issued in June 2026 and another issued back in April 2025. In the latest one, the division recommended that Region 22 withdraw a complaint and dismiss a charge relating to a nursing home’s grant and subsequent rescission of COVID-19 hazard pay. In the other, the division instructed a region that it should not pursue the theory that a restrictive covenant in an employer’s contracts with building clients violates the National Labor Relations Act.

COVID-related hazard pay. In a June 2026 advice memorandum, the NLRB Division of Advice explained its conclusion that Region 22 should withdraw the complaint and dismiss a charge alleging that GeriCare, Inc., operator of Pinebrook Nursing Home in Englishtown, New Jersey, unlawfully rescinded COVID-19 hazard pay without bargaining with 1199 SEIU Healthcare Workers East. Advice determined that the employer’s implementation and later termination of hazard pay were not separate unilateral changes but rather components of a single decision driven by extraordinary pandemic-related circumstances.

At the onset of the COVID-19 pandemic in March 2020, Pinebrook faced severe staffing shortages, with absenteeism in some departments reaching 50 to 100 percent. At the same time, New Jersey ordered nursing homes to accept COVID-19-positive residents returning from hospitals, significantly increasing operational demands. To address the staffing crisis and ensure continued resident care, the employer quickly implemented temporary hazard pay ranging from $3 to $9 per hour for bargaining-unit employees, without prior notice to or bargaining with the union. By April 2020, nearly all unit employees at Pinebrook were receiving additional pay.

Economic exigency. Advice determined that these circumstances constituted the type of economic exigency recognized by Board precedent as permitting immediate employer action. The memorandum emphasized that the hazard pay was created solely to address emergency staffing shortages caused by the pandemic and was never intended as a permanent wage increase.

By June 2020, attendance levels had largely returned to pre-pandemic norms, COVID-19 cases in New Jersey were declining, and state restrictions were beginning to ease. The employer therefore discontinued the temporary hazard pay during the July 2020 pay period. Advice found that the grant and rescission of hazard pay were inextricably linked to the same emergency conditions and thus constituted a single privileged decision excused from bargaining requirements.

The memorandum further distinguished the case from Alaris Health at Boulevard East v. NLRB, noting that unlike the employer in Alaris, GeriCare’s actions were supported by evidence of pandemic-related staffing shortages and were directly tied to the COVID-19 emergency. Even assuming an arguable obligation to bargain over the effects of ending hazard pay, Advice concluded that continued litigation would not effectuate the purposes of the Act because the emergency had long since ended and the Pinebrook facility had changed ownership three times since 2022. Under those unique circumstances, the Advice Division concluded that requiring bargaining over a long-expired temporary benefit would be largely moot and an inefficient use of agency resources. Accordingly, it recommended dismissal of the case. The case is No. 22-CA-270599.

No-poach agreements. In another memo, issued last year but only recently released, the Division of Advice summarily instructed Region 18 not to pursue the theory that a restrictive covenant within an employer’s contracts with its building clients unlawfully interfered with employees’ Section 7 rights as described in Planned Companies, Case 22-CA-321532. The memo states, “The Acting General Counsel believes that under extant law, such restrictive covenants between companies like no-poach agreements do not as a general matter impact employees’ rights under Section 7. Therefore, the Region should only proceed on the remaining violation under extant law.”

The case is No. 18-CA-335765.

News: LaborNews AgencyNews Labor ContractClaims Covid19 WageHour