NLRB General Counsel Challenges Biden-Era Employee and Union Rights Decisions

August 31, 2026

James Macy’s confirmation to the National Labor Relations Board (NLRB) in August gave the board the crucial three votes needed to alter Biden-era precedent. Days later, General Counsel Crystal Carey identified the rulings she is actively seeking to overturn or intends to challenge.

Below is a breakdown of each Biden-era case the NLRB will revisit, what it changed for employers, and why the general counsel wants it overturned.

Which Biden-Era Decisions Will the NLRB Revisit First?

Severance Agreements

- Case: McLaren Macomb, 372 NLRB No. 58 (2023)
- Employer impact: Held that employers violate the National Labor Relations Act (NLRA) by offering employees severance agreements containing broad confidentiality and non-disparagement provisions, even if employees never sign them, because such provisions tend to chill employees' exercise of their Section 7 rights.
- Why the general counsel wants it overturned: Carey argued to overrule McLaren Macomb, signaling a return to broader employer discretion in drafting severance agreements.

Workplace Rules

- Case: Stericycle, 372 NLRB No. 113 (2023)
- Employer impact: Established a new standard for evaluating employer workplace rules under which a rule is presumptively unlawful if an employee could reasonably interpret it to restrict Section 7 activity. It replaced the prior Boeing balancing test with a framework that makes it significantly easier to challenge handbook provisions.
- Why the general counsel wants it overturned: Carey favors a return to a standard that gives employers greater flexibility in maintaining workplace rules without facial challenges absent actual harm.

Captive Audience Meetings

- Case: Amazon.com Services LLC, 373 NLRB No. 136 (2024)
- Employer impact: Overturned nearly 80 years of precedent by holding that mandatory employer meetings to discuss unionization (so-called "captive audience" meetings) violate employee rights, making it an unfair labor practice for employers to require attendance at such meetings.
- Why the general counsel wants it overturned: Carey encouraged the board to reverse Amazon and return to the standard set in 1948, which permitted such meetings.

Predictions on Impact of Unionization

- Case: Siren Retail Corp. d/b/a Starbucks, 373 NLRB No. 135 (2024)
- Employer impact: Narrowed the circumstances under which employers may make predictions about the effects of unionization during organizing campaigns, restricting employer speech rights by tightening the standard for distinguishing permissible predictions from impermissible threats.
- Why the general counsel wants it overturned: Carey stated she does not share her predecessor's views on Siren Retail and seeks to reinstate the prior standard, which provided broader latitude for employer speech regarding the potential consequences of unionization.

Dress Codes

- Case: Tesla, Inc., 371 NLRB No. 131 (2022)
- Employer impact: Applied a standard under which employer dress code and uniform policies restricting union insignia are presumptively unlawful, unless the employer demonstrates special circumstances justifying the restriction.
- Why the general counsel wants it overturned: Carey argued against application of Tesla and requested reinstatement of Wal-Mart Stores, Inc., 368 NLRB No. 146 (2019), which gave employers more latitude to enforce dress code policies.

Consent Orders

- Case: Metro Health Inc. d/b/a Hospital Metropolitano Rio Piedras, 373 NLRB No. 89 (2024)
- Employer impact: Changed the board's standard for consent orders in settlement agreements, imposing more burdensome requirements on employers entering into consent agreements to resolve unfair labor practice complaints.
- Why the general counsel wants it overturned: Carey requested the board overturn Metro Health in the Amazon case (31-CA-317349, 31-CA-319781, 31-CA-320596), seeking to return to settlement practices that are less onerous for employers.

Rulings That Face Reversal in Future NLRB Cases

In addition to the positions already briefed in ongoing cases, the general counsel identified several other Biden-era precedents she intends to challenge when appropriate cases arise.

Bargaining Orders

- Case: Cemex Construction Materials Pacific, LLC, 372 NLRB No. 130 (2023)
- Employer impact: Established a framework under which an employer that commits unfair labor practices during a union election campaign may be required to recognize and bargain with the union without a new election, effectively creating an alternative path to unionization that bypasses the traditional secret-ballot election process.

- Why the general counsel wants it overturned: Carey contends that Cemex conflicts with Supreme Court precedent and she plans to urge the board to restore the prior standards emphasizing the importance of secret-ballot elections.

Protected Concerted Activity

- Case: Miller Plastic Products, Inc., 372 NLRB No. 134 (2023) and Lion Elastomers, LLC, II, 372 NLRB No. 83 (2023)
- Employer impact: Broadened the scope of employee conduct protected under the NLRA during labor disputes, making it harder for employers to discipline employees for misconduct (including profane, racially offensive or sexually harassing conduct) that occurs in connection with otherwise protected activity.
- Why the general counsel wants it overturned: Carey views Lion Elastomers II as "problematic" because it "has led to the protection of generally prohibitable employee conduct that is tenuously connected with rights protected under the Act."

Enhanced Remedies

- Case: Thryv, Inc., 372 NLRB No. 22 (2022)
- Employer impact: Authorized novel and unprecedented enhanced remedies for unfair labor practices, including consequential damages, public notice readings, and other measures going beyond the board's traditional make-whole relief.
- Why the general counsel wants it overturned: Carey noted that Thryv remedies "have yet to be tested in a compliance hearing" and that the case and its accompanying remedies "have repeatedly been struck down by the courts."

What Reversing Biden-Era Labor Law Means for Employers

The general counsel’s memo provides the clearest roadmap yet for the direction of federal labor law under the current administration. With the board now possessing the three Republican votes needed to act, employers should anticipate meaningful changes to labor law doctrine in the coming months.

Employers should continue to comply with existing precedent until the board formally issues decisions overturning these cases. However, now is an appropriate time to review workplace policies and prepare for a potentially more employer-friendly regulatory environment.

Please contact Mark Fijman, Camille Broussard or any member of the Phelps labor and employment team with questions.