NLRB General Counsel Issues Further Guidance On Employer-Friendly Priorities

On August 26, 2026, the General Counsel of the National Labor Relations Board (Board), Crystal S. Carey, identified precedent that she would like the Board to re-evaluate. The list of areas in which the General Counsel will push for change is extensive, and employers should be on the lookout for updates in the following areas:

• Severance Agreements (and other Employment Agreements): Overturning McLaren Macomb, 372 NLRB No. 58 (2023), which held that the analysis of whether a severance agreement is unlawful requires an examination of the language of the agreement to determine whether it has a reasonable tendency to interfere with, restrain or coerce employees’ rights. This holding substantially limits the enforceability of confidentiality and non-disparagement provisions in such agreements. Instead, the General Counsel will void a severance agreement only if it contains an explicit waiver of employees’ rights under the National Labor Relations Act (NLRA).
• Work Rules: Overturning Stericycle, 372 NLRB No. 113 (2023), which held that work rules are presumptively unlawful if the General Counsel proves that the rule has a reasonable tendency to chill employees’ exercise of their rights. General Counsel Carey proposes a balanced approach to facially neutral work rules that recognize employers’ legal duties to maintain safe environments, investigate allegations of harassment and safeguard confidential and proprietary information.
• Captive Audience Meetings: Overturning Amazon.com Services LLC, 373 NLRB No. 136 (2024), in which the Board held that an employer violates the NLRA by holding employee meetings about unionization without informing its employees that their participation was voluntary and they would not be disciplined or discharged if they chose not to participate. Instead, the General Counsel would apply the previously longstanding “captive audience” standard, under which employers could hold mandatory meetings with employees to express its views on unionization, so long as the employer did not threaten employees or promise benefits for attendance. Historically, employers have been permitted to hold such meetings at any time except within 24 hours prior to a union election.
• Predictions on Impact of Unionization: Reinstating the standard set forth in Tri-Cast, Inc., 274 NLRB No. 377 (1985), which made lawful most employer statements to employees regarding the impact that unionization would have on the workplace.
• Dress Codes: Replacing the current standard for analyzing employer dress codes adopted in Tesla, Inc., 371 NLRB No. 131 (2022), under which most employer dress codes are unlawful unless justified by “special circumstances.” The General Counsel proposes reinstating an approach that balances the employers’ rights to maintain neutral and nondiscriminatory dress rules and the employees right to display reasonable insignia on their uniforms.
• Waiver of Right to Bargain: Reestablishing the contract coverage test and the rule that an employer does not violate the NLRA if the collective bargaining agreement grants the employer the right to take certain actions unilaterally. This rule would replace the current “clear and unmistakable waiver” standard, under which courts will not infer that the parties intended to waive a statutorily protected right, such as bargaining over a mandatory subject of bargaining, unless doing so was explicitly stated in the contract.
• Employers’ Duty to Bargain Prior to Changing Terms and Conditions of Employment: Increase the efficiency of bargaining labor contracts by creating a standard where parties do not need to bargain over each issue in the contract before making a change, particularly when the parties have a longstanding practice of addressing the issue in a particular manner. Under the General Counsel’s proposal, the employer could simply implement the parties’ established practice on certain issues without bargaining.

We will keep an eye on the status of these objectives and will provide updates as cases present themselves under which the General Counsel can push these employer-friendly initiatives. If you have any questions or would like to discuss any labor relations issues, please contact Rob Driscoll, your Reinhart attorney or another member of Reinhart’s Labor and Employment Team.