In January 2026, NLRB General Counsel Crystal S. Carey began her term by announcing a focus on clearing a growing backlog of cases as her top priority. Unlike other newly appointed General Counsels, she did not quickly issue a sweeping list of precedents to be reconsidered, typically done by requiring Regions to submit cases implicating these precedents.
Instead, she signaled her intention to continue many protocols set forth by her predecessor, William Cowen, aimed at timely and expeditious case-handling. On August 26, Ms. Carey issued Memorandum GC 26-04 which reiterated the above priorities but also identified thirteen (13) Biden-administration precedents which she has already challenged or intends to challenge. These cases involve:
- Severance and Employment Agreements
- Consent Orders
- Work Rules
- Captive Audience Meetings
- Employer Predictions on the Impact of Unionization
- Dress Codes/Union Insignia
- Waiver of Rights to Bargain/Management Rights
- Bargaining Orders
- Unilateral Changes to Employment Terms
- Union Dues/Fees
- Scope of Protected Concerted Activity/Employee Misconduct
- Dues Checkoff
- Enhanced Remedies for Violations
The underlying cases identified in Memorandum GC 26-04 remain in effect until the Board overturns them or meaningfully narrows their scope. For non-union employers, the two precedents identified above which, if overruled, will permit the most impactful change to current practices are severance agreements and work rules.
Currently, under McLaren Macomb, 372 NLRB No. 58 (2023), severance agreements presented to non-supervisory/management employees (and supervisors in some rare cases) are problematic and potentially unlawful if they contain (a) non-disparagement clauses which prevent the employee from making statements that could disparage or harm the image of their former employer or the employer’s management team or employees or (b) confidentiality provisions which go beyond a prohibition on disseminating proprietary or trade secret information or financial terms of the settlement. The previous NLRB General Counsel, William Cowen, had rescinded Biden-era guidance about compliance with McLaren Macomb and it is doubtful that overly broad provisions would be found as a violation. Still, for now and until McLaren Macomb is overruled, which feels inevitable, the case remains precedent, and employers should continue to use non-disparagement and confidentiality provisions consistent with current law.
Regarding work rules, Stericycle, 372 NLRB No. 113 (2023) created a return to an employee-friendly standard for considering the lawfulness of certain work rules and policies. Under it, many rules regarding workplace civility/behavior/misconduct and confidentiality were suddenly problematic because they could be reasonably interpreted as chilling employees’ right to protected concerted activity. Assuming Stericycle is overturned, employers, with guidance from counsel, should revisit their codes of conduct and similar policies and consider changes consistent with legitimate business objectives. Employers should audit their work rules and determine which do not adequately provide protection against such items as negative communications about the company or customers, personal or inappropriate attacks against other employees, insubordination to management, or disclosure of confidential information.
In a brief filed on September 11, 2026, in Atlassian Corp., Case 16-CA-324917, the General Counsel’s office urged the Board to overturn both McLaren Macomb and Stericycle. The General Counsel argues for a slightly different approach to both severance agreements and work rules than were found in pre-Biden-era cases but also states that a return to such older precedent would be far preferable to the current standards. The brief provides practitioners with a potential roadmap of how Board law on severance agreements and work rules will shift.
Finally, in Memorandum GC 26-04 the General Counsel highlighted Amazon.com Services, LLC, 373 NLRB No. 136 (2024), which prohibited so-called “captive audience” meetings, as another case which she advocates overturning. Prior to Amazon.com Services, companies were free to require employees to attend on-the-clock meetings where the pros and cons (generally cons) of employee unionization were discussed. If the case is overturned, employers should revisit their communications strategies and consider whether to employ or reinstate such measures.
HR leaders should not assume that a likely reversal permits an immediate return to mandatory meetings. While the current rule remains in place, employers should continue to use voluntary meeting practices, make attendance optional, communicate that no retaliation will result from a decision not to attend, and train managers not to pressure employees directly or indirectly. At the same time, HR can prepare practical alternatives, including voluntary educational sessions, manager talking points, and a rapid implementation plan that can be activated only if the Board changes the governing standard.
Michael J. Passarella is the chair of the Employment Practice at Olshan Frome Wolosky LLP. He may be reached at mpassarella@olshanlaw.com.