National Labor Relations Board (NLRB) General Counsel William B. Cowen rescinded a number of NLRB memoranda, continuing a sharp break from the prior administration. This includes (but is not limited to):
- GC 23-05 – limiting confidentiality and non-disparagement clauses in severance agreements, relative to the McLaren Macomb decision and NLRA Section 7 rights;
- GC 23-08 – the interaction between non-compete agreements and chilling NLRA Section 7 rights;
- GC 25-01 – stay-or-pay provisions infringing upon NLRA Section 7 rights; and
- GC 24-01 – collective bargaining relative to the Cemex decision.
Business Takeaway: While general counsel memoranda do not constitute a new rule of law, they are likely to influence NLRB enforcement. Many businesses will have to consider modifying (or reverting) practices—particularly those engaged in NLRB actions or who updated practices in accordance with recent NLRB guidance. No doubt these administrative changes are frustrating (though relatively common), given you are trying to comply with increasingly unpredictable and moving targets. Contact us if you have questions about the new guidance and whether it affects your agreements or practices.