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On August 26, 2026, the General Counsel (GC) of the National Labor Relations Board (NLRB or the Board), Crystal Carey, issued Memorandum GC 26-04 to Regional Directors, Officers-in-Charge, and Resident Officers, identifying a list of Biden-era NLRB precedents that she has challenged or intends to challenge. More broadly, GC Carey’s memo signals potentially significant changes ahead for employers, unions, and practitioners to navigate if her intentions come to fruition.
GC Carey opens the memo by emphasizing that her top priorities are reducing the NLRB’s historic case backlog and implementing sustainable practices to prevent a backlog of that scale from happening again. She states that those operational goals take priority over efforts to reshape NLRB law, while also making clear how she intends to use her prosecutorial discretion. The remainder of the memo identifies specific cases in which GC Carey has already filed briefs seeking to overturn precedent, as well as precedents she seeks to challenge when the appropriate opportunity arises.
The first topic on that latter list concerns non-disparagement and confidentiality clauses in severance agreements.
In McLaren Macomb, 372 NLRB No. 58 (2023), the Biden-era Board held that offering a severance agreement containing a broad non-disparagement provision violates Section 8(a)(1) of the National Labor Relations Act (NLRA) when such provision requires employees to give up their Section 7 rights — such as discussing workplace conditions or engaging in concerted activity. The Board also found that broad confidentiality provisions similarly violated the NLRA. As a result, the decision cast doubt on the legality of many commonly used non-disparagement and confidentiality clauses in severance agreements.
As GC Carey notes in the memo, she has filed an answering brief in Valley Radiology, P.A. (10-CA-324512) arguing that the Board should overrule McLaren Macomb. If the Board agrees, employers could regain more flexibility in their inclusion of non-disparagement and confidentiality provisions in severance agreements.
The memo identifies several other areas in which existing precedent has been, or may be, challenged, including:
- Consent Orders
- Work Rules
- Captive Audience Meetings
- Predictions on Impact of Unionization
- Dress Codes
- Waiver of Right to Bargain
- Bargaining Orders
- Employer’s Duty to Bargain Prior to Changing Terms and Conditions of Employment
- Union Dues and Objector Representation Fees
- Protected Concerted Activity
- Employer’s Obligation to Discuss Dues/Fees Under Security Agreements After the Contract Expires
- Enhanced Remedies
Taken together, GC Carey has outlined a roadmap for overturning several significant Biden-era precedents. Employers and unions should watch closely as these issues develop.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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