NLRB’s Acting General Counsel Rescinds Key Biden-Era Labor Policies: What Employers Need to Know

This article is from The National Law Review: https://ow.ly/OpTc50V6EQO The winds of change are blowing through the National Labor Relations Board (NLRB). On February 14, 2025, Acting General Counsel William Cowen issued a sweeping memorandum—GC 25-05—rescinding more than a dozen labor policy memoranda issued during the Biden administration by former General Counsel Jennifer Abruzzo.

This move marks a major policy pivot at the NLRB and could signal the beginning of a broader shift in the agency’s enforcement priorities under the Trump administration.

Background: What Are GC Memoranda?

General Counsel (GC) memoranda are nonbinding policy documents issued to provide direction to NLRB regional offices. While not law, they help determine how aggressively the Board pursues certain cases and interpret labor protections under the National Labor Relations Act (NLRA).

During her tenure, Abruzzo used GC memoranda to expand the reach of Section 7 rights, increase scrutiny of employer practices, and call for bold interpretations of existing law in favor of employees and unions.

What’s Changed? Cowen’s GC 25-05

In GC 25-05, Cowen explained that the Board’s growing backlog of cases is “no longer sustainable,” prompting a review and rescission of several high-impact memoranda. Among the most notable rescissions are:

🚫 GC 23-08 (Non-Compete Agreements)

• Previously declared that most non-compete clauses in employment and severance agreements violated Section 7 of the NLRA.

• Cowen’s rescission eases scrutiny on employers using non-competes, though legal caution is still advised.

🚫 GC 25-01 (Stay-or-Pay Provisions)

• Previously targeted agreements requiring employees to repay training or bonuses if they left early.

• These clauses are no longer flagged as inherently unlawful, unless a court or future Board decision rules otherwise.

🚫 GC 23-05 (Severance Agreements and McLaren Macomb)

• Abruzzo’s memo broadly interpreted McLaren Macomb to prohibit non-disparagement and confidentiality clauses in severance agreements.

• Cowen’s rescission casts doubt on that interpretation, though the Board’s underlying decision in McLaren still technically stands.

Other rescinded memoranda touched on:

• Employee classification of college athletes

• Employer obligations during union campaigns

• Remedies for NLRA violations

• Mandatory “captive audience” meetings

  
  

What This Means for Employers

Although Cowen’s memorandum does not reverse Board decisions, it redefines the enforcement landscape by deprioritizing previously controversial interpretations. The practical implications include:

• Reduced legal risk in using non-competes, confidentiality provisions, and stay-or-pay clauses

• A greater likelihood of settlement opportunities in pending cases before the NLRB

• Signals that pro-union interpretations may be reevaluated in future Board rulings

However, it’s important to note that:

• Existing case law, such as McLaren Macomb, remains binding unless overturned

• The Board currently lacks a quorum, limiting immediate reversals of precedent

• These changes may be temporary depending on future political developments

  
  

What Employers Should Do Now

1. Review your employment contracts and severance agreements for provisions that were previously under scrutiny.

2. Monitor open matters before the NLRB—new settlement strategies may now be more viable.

3. Stay tuned for further guidance or rulemaking from the NLRB, especially once a quorum is restored.

4. Consult with counsel before re-implementing or expanding policies that were previously considered high-risk.

   
   

Final Thoughts

While the rescission of these memoranda doesn’t change the law overnight, it represents a dramatic shift in federal labor policy enforcement. Employers should consider this memo a clear signal of the Trump administration’s intent to recalibrate the NLRB's focus, potentially reducing enforcement pressure on businesses—at least for now.