NLRB Rescinds Biden-Era Guidance on Noncompetes, Employee Monitoring and Rights to Organize

The National Labor Relations Board’s (NLRB) acting general counsel rescinded more than 30 guidance memos from his predecessor on Feb. 18. This decision reflects the NLRB’s new policy agenda and carries considerable implications for employers nationwide.

General counsel memos serve as policy guidance documents issued to NLRB field offices and the public. The memos express the general counsel’s interpretations of the National Labor Relations Act (NLRA) and outline enforcement strategies on various labor issues. While not legally binding, they provide insight into the prosecutorial priorities of the general counsel’s office and inform employers, unions and employees about how the NLRB may approach certain labor practices.

On Jan. 27, President Donald Trump dismissed Jennifer Abruzzo from her position as general counsel, citing noteworthy union-friendly decisions misaligned with his administration’s objectives. On Feb. 4, President Trump appointed William Cowen as acting general counsel. Prior to his appointment, Cowen was the regional director for the NLRB’s Los Angeles office and is also a former board member.

Cowen’s memo immediately rescinded 18 memos issued during Abruzzo’s tenure. It also rescinded 13 additional memos, pending further guidance. Notable rescissions include:

• GC 21-08 - Statutory Rights of Student Athletes Under the NLRA: Abruzzo’s memo argued that certain college athletes qualify as employees under the NLRA, granting them the right to organize and engage in collective bargaining under the NLRA.

• GC 22-06 – The NLRB’s Efforts to Secure Full Remedies in Settlements: GC 22-06 reinforced the NLRB’s efforts to “make employees whole” in resolving unfair labor practice claims by directing regions to seek comprehensive remedies. Relying on this memo, regions frequently sought compensation for emotional distress or reputational harm (consequential damages) during settlement negotiations. This memo also discouraged non-admission clauses in settlement agreements that permit employers to settle without admitting liability.  

• GC 23-02 – Whether Electronic Monitoring of Employees Interferes with Employees’ NLRA Rights: GC 23-02 highlighted concerns that advanced surveillance technologies could interfere with employees' ability to engage in protected activities under the NLRA. Amid employers’ use of advanced technologies to assess productivity and manage workloads, Abruzzo’s memo proposed a framework to decide if these practices unlawfully interfered with or deterred a reasonable employee from engaging in protected activities such as organizing or collective bargaining.

• GC 23-05 – Whether Non-Disparagement and Confidentiality Clauses Violate the NLRA: This memo followed the NLRB’s decision in McLaren Macomb. There, the NLRB held that non-disparagement and confidentiality provisions in non-managerial employees’ settlement agreements violated Section 7 of the NLRA. Cowen’s memo signals that the NLRB may no longer deem such provisions violate the NLRA.  

• GC 23-08 - Non-Compete Agreements that Violate the National Labor Relations Act: Abruzzo issued guidance challenging the enforceability of noncompete agreements, arguing that noncompetes could potentially violate employees’ rights under the NLRA.

• GC 25-01 – Non-Compete and “Stay-or-Pay” Provisions that Violate the National Labor Relations Act: This memo scrutinized the legality of “stay or pay” provisions in employment contracts—agreements requiring employees to remain with an employer for a fixed period or repay specified sums. Abruzzo believed that these provisions could unlawfully restrain employees’ mobility and infringe on their NLRA rights.

Employers should closely monitor these developments and evaluate their labor practices and policies to ensure compliance with evolving interpretations of the NLRA. Please contact Marcellus D. Chamberlain or a member of the Phelps labor and employment team with questions or for advice and guidance.