NLRB General Counsel Memos from the Biden Administration Revoked

Many of the National Labor Relations Board (NLRB) general counsel (GC) memos issued during the Biden administration were rescinded on Feb. 14, easing burdens on employers.

Rescinded memos include:

• GC 21-08 Statutory Rights of Players at Academic Institutions (Student-Athletes) Under the National Labor Relations Act (NLRA).
• GC 22-06 Update on Efforts to Secure Full Remedies in Settlements (Revised Attachment).
• 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 24-04 Securing Full Remedies for All Victims of Unlawful Conduct.
• GC 25-01 Remedying the Harmful Effects of Noncompete and ‘Stay-or-Pay’ Provisions that Violate the NLRA.

In addition, many memos were rescinded pending further guidance, including:

• GC 21-06 Seeking Full Remedies.
• GC 24-01 (Revised) Guidance in Response to Inquiries About the Board’s Decision in Cemex Construction Materials Pacific LLC.
• GC 25-04 Harmonization of the NLRA and EEO Laws.

The harmonization memo was “aimed at addressing employee conduct/comments made in the course of engaging in NLRA-protected activity,” such as an employee airing workplace concerns during a grievance meeting or contract negotiations, said David Pryzbylski, an attorney with Barnes & Thornburg in Indianapolis. 

“There can be tensions between an employer’s obligations under EEO [Equal Employment Opportunity] laws—like Title VII [of the Civil Rights Act of 1964]—in prohibiting unlawful harassment and discrimination while at the same time allowing employees to use insults, obscenities, or other vulgar language in the course of otherwise protected conduct. For example, if, in a heated exchange during a bargaining session, an employee starts shouting racial slurs, can an employer discipline this employee pursuant to its anti-harassment/discrimination policies to avoid liability under Title VII?”

Robert Boonin, an attorney with Dykema in Ann Arbor, Mich., said the rescinded harmonization guidance did not provide much meaningful guidance to employers on how to handle such questions. “The more important issue to be addressed by a new general counsel and the board is to provide more realistic guidance as to what rules in handbooks and otherwise are legal,” he said. For example, employers would like civility rules to be afforded more deference by the NLRB.

“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 memorandum—jointly issued by the Equal Employment Opportunity Commission and the National Labor Relations Board—that establishes a clear and unified stance: workplace language or conduct that is racially or sexually charged, profane, or abusive, is not protected under 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 and head of government affairs.

We’ve gathered articles on the news from SHRM and other outlets.

Student-Athletes

Under GC 21-08, now revoked, certain student-athletes were considered to be statutory employees. 

Efforts for student-athletes to be recognized as employees aren’t dead, however. Ongoing litigation remains, and athletes might find employment status granted to them by courts under the Fair Labor Standards Act.

Noncompete Agreements

Last year, former NLRB General Counsel Jennifer Abruzzo issued a memo to board regional directors doubling down on her position that overbroad noncompete agreements are unlawful and asserting that certain “stay-or-pay” provisions violate employees’ rights under the NLRA. That memo has now been rescinded.

Rules for Recognizing Unions

Cemex, whose guidance memo has been rescinded (though the opinion has not been rescinded, for now), changed the way employers must respond to union card checks. In 2023, the board ruled that when a union requests recognition on the basis that a majority of employees in a bargaining unit supported the union, an employer must either recognize and bargain with the union or promptly file a petition seeking an election.