The Trump NLRB is likely to be less aggressive in pursuing consequential damages and injunctions, less protective of migrant workers, and more accepting of severance and noncompete agreements.
On February 14, 2025, the National Labor Relations Board’s Acting General Counsel, William B. Cowen, issued a memo that rescinded a number of previous memos that had been issued by former General Counsel Jennifer Abruzzo. Although GC memos are not legally binding, they provide valuable insight into the Agency’s priorities and can help both employers and labor unions predict how it will address contentious issues.
In total, Cowen rescinded 17 memos entirely and rescinded 14 more pending further guidance. Several of the rescinded memos dealt with internal NLRB procedures and relations with other federal agencies. However, a number dealt with substantive areas of the law where the Agency apparently intends to take new and different approaches.
This Alert summarizes the most important rescissions and discusses the changes that they portend.
Migrant Workers
Under Abruzzo, the NLRB prioritized the protection of migrant workers. In GC 22-01, which was issued in both English and Spanish, Abruzzo laid out a protocol designed to address the particular needs of immigrant communities by advancing Section 7 rights and expanding protections for immigrants participating in Board investigations. Among other policies and procedures, this protocol: (1) stated that the general counsel would pursue relief such as deferred action and parole to protect migrant workers exercising Section 7 rights; (2) directed regions to develop remedies designed to prevent immigration-based retaliation for participation in Board proceedings; and (3) announced a general opposition towards introducing evidence of or questioning a witness regarding immigration status.
Not surprisingly, the Trump administration appears poised to roll back these protections; Cowen not only rescinded GC 22-01, but indicated that additional guidance will be forthcoming. Considering President Trump’s recent immigration policy overhauls, any additional guidance from Cowen is virtually guaranteed to reduce protections for migrant workers.
At this juncture, it would be difficult to completely rid nonresident immigrant workers of rights under the Act, as the Board has long recognized that the Act covers employees regardless of their lawful status and this interpretation has been approved by the United States Supreme Court. See Sure-Tan v. NLRB, 467 U.S. 883 (1984). However, employers should anticipate significant shifts in this area. For example, the Agency may be less willing to participate in the Department of Homeland Security’s Deferred Action for Labor Enforcement (DALE) program, which offers workers involved in labor disputes temporary protection from deportation and a work permit. The DALE program was first adopted in January 2023 under the Biden administration and, thus, remains particularly susceptible to shifts under the Trump administration. As GC 22-01 emphasized the Board’s intent to pursue such remedies, its recission may serve as a method to roll back the DALE program’s protections.
Representation Elections
In August 2023, the Board issued a major decision in Cemex Construction, LLC, 372 NLRB No. 130 (Aug. 25, 2023), that made it substantially easier for workers to unionize. For decades, employees who sought to unionize were generally responsible for petitioning the Board for an election. Cemex shifted this responsibility onto employers by requiring them to file for an election within two weeks of a union issuing a demand for recognition. (It is important to note that Cemex did not do away with employee-initiated elections entirely; rather, it provided a new pathway for workers to unionize.) In the aftermath of the decision, Abruzzo issued guidance on its interpretation. Cowen has rescinded this guidance and indicated that new guidance will be forthcoming.
Cemex was one of the most important decisions issued by the Biden Board, and it will likely be a target for reversal under the second Trump administration. Cowen’s pledge to release new guidance on the interpretation of the decision suggests that he will likely attempt to limit its application until the decision is overturned.
Damages and Remedies
Advocates for organized labor have long argued that the remedies available to the NLRB are too lax to ensure full compliance with the National Labor Relations Act (NLRA). The Board has historically had the authority to reinstate unlawfully terminated employees, to order the payment of back and front pay, to order employers to cease and desist from unfair labor practices, and to order the posting and reading of notices, but not to impose direct monetary fines. In order to address the perceived weakness of Board remedies, Abruzzo urged regional directors to pursue consequential damages, which are intended to compensate employees for the incidental or indirect consequences of violations by their employers. For example, under the Biden Board a wrongfully terminated employee who incurred credit card late fees or penalties for early withdrawals from retirement accounts while out of work could seek repayment from his or her employer as part of a make-whole remedy.
Under the Trump administration, this initiative appears to be over. Cowen rescinded several memos (GC 21-06, GC 21-07 and GC 24-04) that encouraged regional offices to push for consequential damages in Board proceedings and in settlement agreements. This indicates that regional offices will generally be less likely to seek consequential damages for unfair labor practices under the Trump Board.
Injunctive Relief
Section 10(j) of the NLRA authorizes the NLRB to seek temporary injunctions from federal courts against both employers and unions while a case is being litigated before the Board. Because Board proceedings can sometimes stretch on for years, this is a valuable tool to stop serious unfair labor practices while litigation is pending. Although all general counsels have pursued 10(j) injunctive relief in certain situations, Abruzzo was particularly aggressive in this area, and issued several memos encouraging regional offices to seek 10(j) relief when employers were alleged to have committed serious violations by, for example, discharging pro-union employees during an organizational campaign or during negotiations for a first contract. See, e.g., GC 21-05 and GC 22-02.
Cowen rescinded a number of memos dealing with 10(j) injunctions and indicated that new guidance will be forthcoming. While the circumstances in which the Agency will seek injunctive relief against employers are still not clear, it is likely that the Trump NLRB will be less aggressive in this area than the Biden NLRB and may even expand the use of 10(j) injunctions against unions that are alleged to have violated the NLRA.
Noncompete Agreements
Under the Biden administration, a number of federal agencies took strong stances against noncompete agreements and other restrictive covenants. Although the Federal Trade Commission’s attempt to ban most noncompete agreements received the most attention, the NLRB also weighed in on this issue. Abruzzo issued two memos (GC 23-08 and GC 25-01) that took the position that, except in limited circumstances, non-compete agreements and many training repayment agreements with non-supervisory/non-management employees violate the NLRA. Abruzzo’s theory was that workers who believe that they will be restricted in finding new employment are less likely to advocate for improved terms and conditions at their current jobs.
Cowen has rescinded both of these memos and has not indicated that any further guidance in this area will be forthcoming. This suggests that the Trump NLRB is unlikely to police the use of restrictive covenants.
Severance Agreements
In McLaren Macomb, 372 NLRB No. 58 (2023), the Biden Board held that employee severance agreements are unlawful on their face if they contain terms with a “reasonable tendency to interfere with, restrain, or coerce employees in the exercise of their Section 7 rights.” This decision applied to both unionized and nonunionized workplaces. Following the decision, Abruzzo issued GC 23-05, which expressed her views on the significance of the decision. In that memo, Abruzzo took the position that: (1) McLaren can also apply to supervisors under certain circumstances; (2) McLaren’s prohibitions apply beyond severance agreements to any employer communication, such as preemployment or offer letters; and (3) the six-month statute of limitations to file an unfair labor practice charge continues to run while such provisions are in effect, not just from the date of execution.
In rescinding GC 23-05, Cowen signaled an end to the various protections that Abruzzo identified as implicit in the Board’s decision. It is likely that Cowen or his successor’s next step will be to formally call for the Board to reverse the decision and return to the paradigm from the first Trump administration, which provided employers with more latitude in structuring severance agreements.
College Athletes
Whether or not student-athletes are statutory employees under the NLRA has been a major point of contention between Democratic and Republican administrations. In general, the Democratic position has been, since the Obama administration, that student-athletes are employees who may unionize. During the first Trump administration, the general counsel took the opposite position. The Board, for its part, has declined to expressly resolve the question.
By rescinding Abruzzo’s memorandum, Cowen signaled that the Agency will likely return to its previous position and will cease to argue that the NLRA extends to college athletes.
What This Means for Employers
When President Biden took office, he promised to be “the most pro-union president leading the most pro-union administration in American history.” He signaled his commitment to this goal by naming a longtime union lawyer as general counsel of the NLRB. Under Abruzzo, the Agency led a concerted effort to expand workers’ rights and encourage unionization. During the second Trump administration, the pendulum will likely swing in the opposite direction. As the rescissions described above indicate, the Trump NLRB is likely to be less aggressive in pursuing consequential damages and injunctions, less protective of migrant workers, and more accepting of severance and noncompete agreements.
The list of rescinded memos provides an early indication of the direction that the Agency is likely to take in the coming years. More clarity will come when the general counsel identifies the specific cases that he or she intends to urge the Board to overturn. This will likely happen when a permanent general counsel is appointed and confirmed by the Senate. (Under the Biden administration, approximately six months separated the initial rescission of memos and the announcement of the general counsel’s agenda.)
In the meantime, employers should continue to work with experienced labor counsel to ensure compliance with existing Board law while anticipating the impact of future changes.
For More Information
If you have any questions about this Alert, please contact Eve I. Klein, Jesse Stavis, Elizabeth Mincer, Paige Carey, any of the attorneys in our Employment, Labor, Benefits and Immigration Practice Group or the attorney in the firm with whom you are regularly in contact.
Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.