On February 14, 2025, newly appointed Acting General Counsel of the National Labor Relations Board (“NLRB”), William Cowen, rescinded several memoranda previously issued by former NLRB General Counsel Jennifer Abruzzo. Cowen also signaled his intention to provide new guidance in line with the Trump Administration’s policy agenda.
In a memorandum dated February 14, 2025, Cowen formally rescinded multiple General Counsel memoranda issued by his predecessor. He explained that the rescissions were necessary to manage an “ever-increasing workload” that had become “unsustainable” for NLRB staff. The rescinded memoranda include:
- GC 23-05 (“Guidance in Response to Inquiries about the McLaren Macomb Decision”) – This memorandum addressed the NLRB’s ruling in McLaren Macomb concerning the extent to which non-disparagement and confidentiality clauses in employee separation agreements may infringe upon employees’ rights under the National Labor Relations Act (“NLRA”). While the rescission does not overturn the McLaren Macomb decision, it eliminates General Counsel Abruzzo’s prior guidance, which stated that “savings clauses or disclaimer language . . . would not necessarily cure overly broad [confidentiality or non-disparagement] provisions.”
- GC 23-08 (“Non-Compete Agreements that Violate the National Labor Relations Act”) – This memorandum asserted that, with limited exceptions, non-compete agreements that restrict employees from accepting certain jobs or starting certain businesses post-employment interfere with their rights under the NLRA.
- GC 25-01 (“Remedying the Harmful Effects of Non-Compete and ‘Stay-or-Pay’ Provisions that Violate the National Labor Relations Act”) – This memorandum contended that “stay-or-pay” agreements—where employees must reimburse employers for benefits such as sign-on bonuses, training repayment agreements (TRAPS), relocation expenses, or tuition reimbursements if they leave before a specified period—are presumptively unlawful under the NLRA.
- GC 21-06 (“Seeking Full Remedies”) & GC 21-07 (“Full Remedies in Settlement Agreements”) – These memoranda directed NLRB Regions to pursue the “full range of remedies available” in unfair labor practice cases and to structure settlements to provide the most comprehensive relief.
- GC 24-01 (“Guidance in Response to Inquiries about the Board’s Decision in Cemex Construction Materials Pacific, LLC”) – This memorandum provided guidance on the NLRB’s 2023 decision to implement a new, union-friendly recognition standard for employers facing union recognition demands.
Looking ahead, employers should anticipate continued shifts in labor policy under the Trump administration, including changes in enforcement priorities. The NLRB itself did not review exceptions filed in these cases or make definitive rulings on the legality of non-compete and non-solicitation clauses before the conclusion of the Biden administration. The repeal of the aforementioned memos reduces the likelihood that a new general counsel will pursue complaints against employers over the use of restrictive covenants. Furthermore, with the potential for a majority-Republican NLRB in the near future, it is unlikely that the Board would rule in alignment with the former general counsel’s guidance on these issues.
Nevertheless, employers should be aware of the risks associated with implementing non-compete and non-solicitation agreements for non-supervisory employees covered under the NLRA. While restrictive covenants for supervisory employees—who are not subject to the NLRA—may face less scrutiny, employers should proceed with caution when drafting and enforcing these provisions. Employers must consider wage thresholds, ensure that such covenants are narrowly tailored to protect legitimate business interests, and remain informed about evolving state laws that govern their enforceability.
If you have any questions regarding the actions of the NLRB, please feel free to contact your Forework HR representative.