Acting General Counsel of NLRB Rescinds Memorandums; SHRM Calls for Policy

On Feb. 14, William Cowen, acting general counsel of the National Labor Relations Board (NLRB), rescinded several memorandums issued by former General Counsel Jennifer Abruzzo. These memorandums outlined Abruzzo’s priorities, covering topics such as employer handbook rules, confidentiality provisions in separation agreements, and the scope of protected concerted activity.

Under the NLRB’s structure, the general counsel’s office is independent from the board and is appointed by the president for a four-year term. The general counsel is responsible for investigating and prosecuting unfair labor practice cases, as well as overseeing NLRB field offices in processing cases.

The rescinded memorandums include:

• GC 23-02: Electronic Monitoring and Algorithmic Management of Employees Interfering with Section 7 Rights
• GC 23-08: Noncompete Agreements that Violate the NLRA
• GC 25-04: Harmonization of the NLRA and EEO Laws

SHRM has been closely monitoring the potential conflict between Title VII of the Civil Rights Act of 1964 and Section 7 of the National Labor Relations Act (NLRA). “With the rescission of former General Counsel Jennifer Abruzzo’s memorandum, ‘Harmonization of the NLRA and EEO Laws,’ we see an opportunity for a new joint memorandum — issued by the U.S. Equal Employment Opportunity Commission and the NLRB — that establishes a clear and unified position: Workplace language or conduct that is racially or sexually charged, profane, or abusive is not protected under either Title VII or the NLRA, even when it occurs as part of otherwise protected concerted activity,” said Emily M. Dickens, J.D., SHRM chief of staff, head of government affairs, and corporate secretary.