Acting NLRB Counsel Rolls Back Many Biden-Era Labor Memos and Begins Process of Changing U.S. Labor Laws: What Employers Need to Know
The Acting General Counsel of the National Labor Relations Board signaled a new policy direction for labor law under the Trump administration by rescinding more than a dozen policies endorsed by previous leadership. William Cowen’s February 14 General Counsel Memorandum 25-05 rolled back multiple policies issued by the previous NLRB General Counsel, including positions on the legality of non-competition agreements and stay-or-pay provisions, whether college athletes should be considered employees, and more. What do you need to know about this development and what should you do about this change? What are General Counsel Memos? While GC memos are not binding law, they act to inform Regional offices of the GC’s priorities in enforcing the National Labor Relations Act. The memos are valuable resources for employers, unions, and employees to understand the current policies of the NLRB and how particular issues will be enforced. The previous NLRB GC, Jennifer Abruzzo, issued multiple memos that shifted Board policy towards increasing union membership, limiting employer free speech rights to lawfully communicate with employees, a more aggressive view of enforcement of the Act, and a more expansive view of protected, concerted activity. Many of General Counsel Abruzzo’s memos resulted in Board decisions that modified or reversed previous Board law. What Did Acting General Counsel Cowen’s Memo Do? In his first action as Acting General Counsel, Cowen made it clear the new administration will not actively pursue a number of the expansive and novel interpretations of federal labor law espoused by the previous GC. You can read GC 25-05 here. Overall, GC Cowen’s memo impacted 31 prior GC memos issued between 2021 and 2025 (yes, some of these were hurriedly issued in January prior to the presidential inauguration). Some of the most impactful memos that are no longer in effect include:
• Contending that most non-competition agreements violate federal labor law • Prohibiting “stay or pay” provisions • Characterizing student-athletes as employees
How Does This Memo Impact Recent NLRB Decisions? By rescinding previous GC guidance, the new GC is also signaling what is expected to be a different approach by the Board regarding significant legal issues. For example, the memo rescinds prior GC guidance related to more recent NLRB decisions that changed long-standing labor law including:
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