Alert

NLRB General Counsel Already Instituting Changes

March 6, 2025

The National Labor Relations Board (NLRB) can change subject to political whims – particularly since the President appoints the agency’s board members and the Office of the General Counsel. Interestingly, on January 25, President Trump fired Jennifer Abruzzo, the previous NLRB General Counsel, in favor of William Cohen, a former NLRB board member.

Acting General Counsel Cohen wasted no time in setting forth the potential policies of his office and the new board. Specifically, Cohen issued several memoranda in which he disfavored the previous board’s agenda and set forth his own agenda:

• Confidentiality and Non-Disparagement Clauses: GC 23-05, which stated the previous General Counsel’s assessment that the use of confidentiality and non-disparagement clauses could violate the National Labor Relations Act (NLRA) by imposing on the right of former employees to engage in speech protected under the NLRA. The previous General Counsel’s viewpoint uprooted numerous existing Separation Agreements, many of which contained confidentiality and non-disparagement clauses. 
• Non-Competes: GC 23-08, which stated the previous General Counsel’s view that non-competition agreements between employers and employees are inherently inconsistent with the provisions of the NLRA, due to their potential to interfere with an employee exercising rights protected under the Act. Given the nationwide injunction against the Federal Trade Commission in enforcing its thoughts on non-compete agreements and this new agenda, it appears that future non-compete agreements will face state law scrutiny, but not federal scrutiny. 
• “Stay or Pay” Agreements: GC 25-01, which concluded that the terms of the NLRA prohibit the use of certain “stay-or-pay” agreements, under which an employee is required to reimburse an employer for certain amounts (such as training expenses paid by the employer or sign-on bonuses previously paid to the employee) in the event that the employee resigns from employment within a defined time period. These agreements will now be considered lawful. 
• Employee Monitoring: GC 23-02, which articulated enforcement priorities regarding workplace technologies that monitor employee activities in ways that might interfere with the exercise of rights protected by the Act; and
• Remedies Available: GC 24-04, which had set forth guidelines for NLRB staff as to the remedies sought when settling or litigating claims involving certain categories of alleged violations of the NLRA.

Of course, the shift means that future decisions are likely to be favorable to management and unfavorable to organized labor. Employers should keep in mind that the NLRB has broad powers and applies both to union and non-union scenarios. Due to the speed with which the NLRB can move, employers are encouraged to seek competent legal counsel if a decision could attract the Board’s interest.