The NLRB Rescinds Certain General Counsel Memoranda

On February 14, 2025, the Acting General Counsel of the National Labor Relations Board (NLRB) issued Memorandum GC 25-05, rescinding certain memoranda issued by the former General Counsel.

Former General Counsel Jennifer A. Abruzzo was widely known for an aggressive, expansive approach to workers’ rights, issuing extensive guidance that dramatically expanded the scope of protected, concerted activity and weakened employers’ ability to use confidentiality clauses and restrictive covenants. Abruzzo’s guidance and Board decisions in the past few years came at the expense of long-established legal precedent. 

The rescission of Abruzzo’s guidance is a sure sign that the Board will shift to more business-friendly policies and interpretations, once the open Board positions are filled. Employers should remember that for now, two significant Board decisions remain Board law. These are McLaren Macomb, 372 NLRB No. 58 (2023), under which certain non-disparagement and confidentiality provisions for nonmanagerial employees were found to be violative of employees’ Section 7 rights and Stericycle, Inc., 372 NLRB No. 113 (2023), which adopted a new and difficult legal standard for evaluating whether the workplace rules violate employees’ Section 7 rights.

To follow is a summary of Memorandum GC 25-05 and its implications.

A. Rescinded Memoranda and Their Impact. These Memoranda are rescinded immediately.

• GC 21-02 Rescission of Certain General Counsel Memoranda – GC 21-02 was a sweeping rescission of General Counsel Memoranda issued between 2018 and 2020.  By rescinding GC 21-02, the NLRB is effectively reversing the policy shifts and potentially restoring some of the older, employer-favored interpretations of the NLRA that GC 21-02 had initially removed.
• GC 21-03 Effectuation of the National Labor Relations Act Through Vigorous Enforcement of the Mutual Aid or Protection and Inherently Concerted Doctrines – Rescinds a memorandum that expanded protections for employees engaging in collective action, thereby reducing enforcement of doctrines protecting employees engaged in mutual aid or inherently concerted activities. This rescission likely reduces emphasis on broader interpretations of employee rights, which may make it more difficult for workers to claim NLRA protections for certain collective workplace actions.
• GC 21-04 Mandatory Submissions to Advice – Rescinds the requirement that Regional Offices must submit certain types of cases to the General Counsel’s Advice Division, giving more discretion to Regional Offices in decision-making.
• GC 21-08 Statutory Rights of Players at Academic Institutions (Student-Athletes) Under the National Labor Relations Act – Rescinds the recognition of student-athletes as statutory employees under the National Labor Relations Act (NLRA), limiting their ability to unionize.
• GC 22-06 Update on Efforts to Secure Full Remedies in Settlements (Revised Attachment) – Scales back efforts to secure full remedies for unfair labor practices in settlements, thereby reducing the scope of remedies available to workers in unfair labor practice settlements, weaking enforcement deterrents, and making it easier for employers to resolve cases with minimal financial penalties, shifting back to an approach where settlements may no longer require consequential damages or employer accountability measures.
• GC 23-02 Electronic Monitoring and Algorithmic Management of Employees Interfering with the Exercise of Section 7 Rights – Discontinues guidance on regulating employer use of electronic monitoring and algorithmic management practices that could infringe on workers’ rights. This rescission removes specific guidance on employer surveillance, making it easier for companies to monitor employees without fear of violating federal labor law, potentially reducing workplace privacy and making union organizing riskier for employees.
• GC 23-04 Status Update on Advice Submissions Pursuant to GC Memo 21- 04 – Rescinds updates on the status of mandatory case referrals to the NLRB’s Advice Division as required by GC 21-04. This rescission signals a shift toward decentralizing decision-making at the NLRB, allowing regional offices more autonomy but potentially leading to less uniformity in how cases are handled across the country.
• GC 23-05 Guidance in Response to Inquiries about the McLaren Macomb Decision – Withdraws guidance on interpreting the McLaren Macomb decision, which ruled that broad confidentiality and non-disparagement clauses in severance agreements could violate employees’ rights under the NLRA. This rescission may potentially lead to less scrutiny of confidentiality and non-disparagement clauses in severance agreements and give employers more flexibility in including such provisions
• GC 23-08 Non-Compete Agreements that Violate the National Labor Relations Act – Ends enforcement against non-compete agreements that potentially violate the NLRA, such as those that contain restrictions discouraging employees from engaging in protected concerted activities, such as organizing or advocating for better working conditions.
• GC 24-04 Securing Full Remedies for All Victims of Unlawful Conduct – Rescinds a memorandum that focused on securing full remedies for victims of unlawful labor practices and encouraging more aggressive enforcement to deter violations.
• GC 24-05 Section 10(j) Injunctive Relief and the U.S. Supreme Court’s Decision in Starbucks Corp. v. McKinney – Removes guidance on seeking Section 10(j) injunctive relief following the Supreme Court’s ruling in Starbucks Corp. v. McKinney, which set the standard the NLRB must meet to secure a temporary injunction against an employer or union to prevent unfair labor practices while a case is being litigated.
• GC 24-06 Attachment Clarifying Universities’ and Colleges’ Disclosure Obligations under the National Labor Relations Act and the Family Educational Rights and Privacy Act – Eliminates requirements for universities to disclose certain labor-related information under the NLRA and the Family Educational Rights and Privacy Act.
• GC 25-01 Remedying the Harmful Effects of Non-Compete and “Stay-or-Pay” Provisions that Violate the National Labor Relations Act – Rescinds a memorandum that focused on addressing the harmful effects of non-compete agreement and “stay-or-pay” clauses (i.e., those that require employees to repay training costs or other expenses if they leave before a certain period) in employment contracts.
• GC 25-02 Ensuring Settlement Agreements Adequately Address the Public Rights at Issue in the Underlying Unfair Labor Practice Allegations – Rescinds a memorandum that aimed to ensure that settlement agreements fully address public rights in unfair labor practice cases by emphasizing that settlements should provide meaningful remedies, avoid overly restrictive terms, and ensure transparency.
• GC 22-04 The Right to Refrain from Captive Audience and other Mandatory Meetings – Rescinds the memorandum that urged the NLRB to reconsider its precedent and prohibit captive audience meetings, which are often used by employers to discourage union activity or influence employee views on labor matters. By rescinding GC 22-04, the NLRB may be softening its stance on captive audience meetings, potentially allowing employers more freedom to conduct these mandatory meetings without facing legal challenges for violating employees’ right to refrain.

B. Rescinded Memoranda Pending Further Guidance and Their Impact. These Memoranda are rescinded pending further guidance.

• GC 21-05 Utilization of Section 10(j) Proceedings; GC 22-02 Seeking 10(j) Injunctions in Response to Unlawful Threats or Other Coercion During Union Organizing Campaigns; GC 23-01 Settling the Section 10(j) Aspect of Cases Warranting Interim Relief – Rescinds three memoranda relating to the use of Section 10(j) injunctions, which allow the NLRB to seek temporary relief for unfair labor practices while a case is being litigated. By rescinding these three memoranda, the NLRB may be reducing its focus on aggressively seeking injunctions in cases of unfair labor practices. This could lead to slower legal interventions when workers face retaliation during union campaigns, potentially allowing employers more leeway to delay or weaken organizing efforts before a final ruling is made.
• GC 21-06 Seeking Full Remedies; GC 21-07 Full Remedies in Settlement Agreements; GC 22-05 Goals for Initial Unfair Labor Practice Investigations; GC 23-07 Procedures for Seeking Compliance with and Enforcement of Board Orders – Rescinds four memoranda that focused on strengthening enforcement of labor rights by ensuring full remedies for unfair labor practices, improving investigation procedures, and enhancing compliance with NLRB orders. This rescission may lead to weaker penalties for unfair labor practices, less pressure on companies to fully comply with NLRB rulings, and slower case resolution.
• GC 22-01 (English & Spanish) Ensuring Rights and Remedies for Immigrant Workers Under the NLRA – Withdraws protections for immigrant workers under the NLRA, pending further review. This rescission may undermine workplace protections for immigrant workers, making it harder for them to report unfair labor practices or participate in union organizing efforts without fear of retaliation.
• GC 22-03 Inter-agency Coordination – Rescinds a memorandum that focused on strengthening collaboration between the NLRB and other federal agencies—such as the Department of Labor, Equal Employment Opportunity Commission, and Department of Homeland Security—to enhance enforcement of worker protections under the NLRA.
• GC 24-01 (Revised) Guidance in Response to Inquiries about the Board’s Decision in Cemex Construction Materials Pacific, LLC – Suspends guidance related to Cemex Construction Materials Pacific, LLC, which made it easier for workers to unionize and imposed stricter consequences on employers who engaged in unfair labor practices during union campaigns. This rescission weakens the NLRB’s commitment to enforcing the protections established in Cemex and could make it easier for employers to challenge unionization efforts without facing automatic union recognition for unfair labor practices.
• GC 25-03 New Processes for More Efficient, Effective, Accessible and Transparent Casehandling; GC 25-04 Harmonization of the NLRA and EEO Laws – Delays recent initiatives for more efficient case handling and harmonizing the NLRA with Equal Employment Opportunity laws meant to ensure that workplace rights related to union activity and anti-discrimination protections were enforced in a coordinated way. By rescinding these memoranda, the NLRB is likely scaling back efforts to streamline case processing and harmonize labor and anti-discrimination protections, potentially making enforcement slower, less transparent, and more fragmented across different legal areas.

C. Restored Memorandum and Its Impact:

• GC 18-01 (Restored; rescinds GC 23-03) – By rescinding GC 23-03 and restoring GC 18-01, the NLRB is reinstating an older policy related to how Regional Directors handle record requests from federal, state, and local worker and consumer protection agencies. This will likely reduce the NLRB’s collaboration with other agencies, which may weaken enforcement efforts against employers who violate multiple labor laws across different jurisdictions.

General Implications for Employers

Overall, the rescission of these memoranda signals a shift in labor policy toward reducing regulatory oversight and enforcement of employee protections under the NLRA. Employers may experience less scrutiny regarding non-compete agreements, electronic monitoring practices, student-athlete employment status, and settlement agreement terms. Additionally, the rollback of certain inter-agency coordination efforts and Section 10(j) injunction guidelines may delay or weaken enforcement actions against unfair labor practices. However, the memorandum indicates that further adjustments may follow, suggesting that additional changes in labor policy could be forthcoming.