Legislative lowdown: Acting NLRB general counsel rescinds more than a dozen Biden-era memos

The acting general counsel of the National Labor Relations Board (NLRB) rescinded a number of memos issued by the outgoing general counsel, Jennifer Abruzzo, amid a shakeup at the agency.

William B. Cowen was appointed to the general counsel role on Feb. 3, several days after President Donald Trump fired both Abruzzo and Gwynne Wilcox, a Democratic member of the NLRB.

On Feb. 14, Cowen rescinded a number of memos released in recent years by Abruzzo, a Biden appointee. Among the memos that are no longer in effect are those providing guidance on noncompete agreements, as well as a memo that said surveillance programs may interfere with workers’ right to organize.

What NLRB watchers should know. After conducting "a comprehensive review of active General Counsel Memoranda,” Cowen rescinded more than a dozen memoranda, including the following:

• A pair of documents concerning non-compete agreements. One memo posited such agreements may violate the National Labor Relations Act (NLRA), as they limit workers’ ability to seek employment elsewhere, while another detailed Abruzzo’s framework for assessing the legality of non-compete provisions, and compensating employees that have been negatively affected by them.
• A memo that detailed numerous ways digital surveillance could interfere with employees’ right to organize under the NLRA, and encouraged the board to help protect employees from “intrusive or abusive electronic monitoring and automated management practices.”
• Guidance on a board decision concerning severance agreements, which ruled that employers violate the law when they include clauses that require workers to “broadly waive their rights” under the NLRA in order to receive severance pay. The decision specifically concerned non-disparagement and confidentiality clauses.

Cowen also rescinded guidance regarding an NLRB decision in Cemex Construction Materials Pacific, LLC, which allowed for workers to join a union by signing authorization cards rather than holding a formal election, and stipulated employers have to bargain with a union even if no formal election is held. He said he will provide further guidance on the decision. A pandemic-era memo that allowed for mail-ballot elections was also rescinded.

Reversing course, again. Abruzzo was appointed to help carry out former President Joe Biden’s pledge to be “the most pro-union” president in US history, and during her term reversed a number of policies instituted when Trump was president from 2017–2021.

With Trump back in office, those policies are being reconsidered, once again. Although general counsel memos are nonbinding, the rescissions provide a window into the labor agenda Cowen and his colleagues will seek to carry out over the next four years.

Compliance leaders seeking to make sense of these recent actions should note that the NLRB cannot actually change workplace law for the time being, as it lacks a three-person quorum to issue decisions due to the firing of Wilcox, an unprecedented move. Wilcox has sued the president, and is seeking to reclaim her board position.