Something in the Air: Developments at the NLRB Under the Trump Administration
Since President Donald Trump took office in January 2025, the National Labor Relations Board (NLRB) has taken steps to reshape its policy priorities in interpreting and enforcing the National Labor Relations Act (NLRA). These developments include leadership changes, policy updates, and revisions to memoranda issued by the General Counsel.
What Changes Have Been Made?
On January 2025, President Trump removed NLRB member Gwynne Wilcox, which effectively stalled the agency’s ability to adjudicate cases due to a lack of quorum. This move has raised legal and constitutional concerns regarding the president’s authority to dismiss members of independent federal agencies. Member Wilcox filed a lawsuit in the U.S. District Court of the District of Columbia, arguing that the president does not have the authority to remove a sitting NLRB member without case. U.S. District Court Judge Beryl Howell reinstated Member Wilcox for the remainder of her term (ending August 27, 2028), finding that the president does not have the authority to remove a sitting member of the NLRB without notice, hearing, or cause. This case will proceed through the appellate process.
Revisions to General Counsel Memoranda
In addition, NLRB General Counsel Jennifer Abruzzo was dismissed on January 27, 2025, and replaced with interim General Counsel William B. Cowen. On February 14, 2025, General Counsel Cowen issued GC Memo 25-05, which announced a comprehensive review of active GC Memoranda and signaled rescission or review of 29 prior GC Memos. Of those memos, several address key issues under the National Labor Relations Act (NLRA), including:
- GC 24–04 “Securing Full Remedies for All Victims of Unlawful Conduct”
GC 24-04 directed regions to “seek full make-whole remedies for all employees harmed as a result of an unlawful work rule or contract term,” not just those explicitly named in a ULP charge. The memorandum explained that the NLRB should not only require employers to remove unlawful work rules and contract terms but also seek to address the lingering effects of the rule or term in the workplace. This GC Memo was rescinded on February 14, 2025. In addition, GC Cowen indicated that the policy of seeking full remedies available in unfair labor practice cases is under review, signaling a potential for parties to negotiate to resolve unfair labor practice disputes. - GC 23-08 “Non-Compete Agreements”
GC 23-08 claimed that non-compete agreements unlawfully deter employees from exercising their rights under the NLRA. The memo emphasized that the “proffer, maintenance, and enforcement of noncompete agreements and other restrictive covenants in employment agreements and severance agreements could discourage employees from engaging in collective activities aimed at improving working conditions, and therefore potentially violating the NLRA. This GC Memo was rescinded on February 14, 2025. - GC 25-01 “Stay-or-Pay Restrictions”
GC Memo 25-01 claimed that non-compete and “stay-or-pay” provisions violate the NLRA. The memorandum argued that stay-or-pay provisions unlawfully restrict employee mobility, deter protected activities, and chill employees from exercising their rights under the Act. This GC Memo was rescinded on February 14, 2025.
Bottom Line
The Trump administration’s approach to labor policy has already led to changes at the NLRB that employers must consider when working with both unionized and non-unionized workforce. There will inevitably be more changes coming in 2025, so employers should continue to stay informed of the evolving landscape at the NLRB.
This article, slightly modified to note recent updates, was featured online in the Great Lakes Employment Law Letter and published by BLR®—Business & Legal Resources. Reproduced here with the permission of BLR®—Business & Legal Resources.
