NLRB’s Acting General Counsel Begins Reshaping Enforcement Priorities

On February 14, 2025, the Acting General Counsel to the National Labor Relations Board (NLRB or Board) rescinded dozens of memoranda issued during the Biden Administration by the Board’s prior General Counsel, signaling a sea change in enforcement priorities. Given the extremely progressive approach taken by the Board’s former chief prosecutor, this is good news for employers. 

You may remember that in 2023, former General Counsel Jennifer Abruzzo declared the use of noncompete provisions in employment contracts and severance agreements to be unlawful, via Memorandum GC 23-08. Then, in 2024, she expanded her position to include “stay-or-pay provisions,” via Memorandum GC 25-01. The Acting General Counsel has rescinded both memoranda, signaling that the Board will no longer prosecute employers for using these common employment provisions.   

At the start of President Biden’s term, his Acting General Counsel issued Memorandum GC 21-03 which expressed an expansive definition of “protected activity” and “concerted” action. For example, the Biden Board took the position that employee advocacy for social or political causes was protected by the law even when employees do not expressly connect their activity to workplace concerns. This expansive approach to the law has been abandoned by the Acting General Counsel who has rescinded Memorandum GC 21-03. 

The Acting General Counsel has also rescinded memoranda that sought to expand remedies available to charging parties in litigation matters and settlements (GC Memoranda 22-06 and 24-04), as well as those which established an aggressive use of injunctions by the Board’s attorneys (Memoranda GC 22-02 and GC 21-05). He has also rescinded the litigation priorities set forth in Memorandum GC 21-04. We can expect further guidance in the months to come on the approach the new General Counsel will take in these areas. 

Finally, we can also look forward to new guidance on Cemex Construction Materials Pacific, LLC., the 2023 case which radically changed the union recognition process. The Acting General Counsel rescinded existing guidance on this case and has stated that revised guidance will be forthcoming.

While we wait for the ship to turn, it is heartening to see the rescission of the former General Counsel’s most aggressive enforcement priorities. We will keep you posted on these changes as they develop. If you need assistance with a Board matter or have questions, please contact us.

KZA Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.