NLRB's New General Counsel Targets 13 Biden-Era Precedents

NLRB General Counsel Crystal S. Carey has identified thirteen Biden-administration precedents she has already challenged or intends to challenge, according to Memorandum GC 26-04, issued August 26. The move signals a likely shift in federal labor law on severance agreements, work rules and captive audience meetings — three areas that directly shape employer policy decisions.

For HR leaders, the most consequential targets are two 2023 decisions: McLaren Macomb, 372 NLRB No. 58, which restricts non-disparagement and confidentiality clauses in severance agreements, and Stericycle, 372 NLRB No. 113, which applies an employee-friendly standard to workplace rules. Both remain binding law until the Board overturns or meaningfully narrows them.

Carey began her term in January 2026 with a different posture from her predecessors. Rather than quickly issuing a sweeping list of precedents for reconsideration, she named clearing a growing backlog of cases as her top priority and signaled she would continue the case-handling protocols of her predecessor, William Cowen.

What does Memorandum GC 26-04 cover?

The thirteen precedent areas Carey flagged include:

• Severance and employment agreements
• Consent orders
• Work rules
• Captive audience meetings
• Employer predictions on the impact of unionization
• Dress codes and union insignia
• Waiver of rights to bargain and management rights
• Bargaining orders
• Unilateral changes to employment terms
• Union dues and fees
• Scope of protected concerted activity and employee misconduct
• Dues checkoff
• Enhanced remedies for violations

The underlying cases remain in effect until the Board acts. For non-union employers, the two areas with the greatest potential impact on current practices are severance agreements and work rules.

What is at stake in severance agreements?

Under McLaren Macomb, severance agreements presented to non-supervisory employees — and supervisors in some rare cases — are potentially unlawful if they contain broad non-disparagement clauses or confidentiality provisions that go beyond protecting proprietary information, trade secrets or the financial terms of the settlement.

Cowen had rescinded Biden-era guidance on McLaren Macomb compliance, and it is doubtful that overly broad provisions would be found to be violations under current enforcement. Even so, the case remains precedent until the Board overrules it — a step many observers consider inevitable. Employers should continue drafting non-disparagement and confidentiality provisions consistent with current law.

What would a Stericycle reversal mean for work rules?

Stericycle restored an employee-friendly standard under which many rules on workplace civility, behavior and confidentiality became problematic because employees could reasonably interpret them as chilling protected concerted activity.

If the decision is overturned, employers — with counsel's guidance — should revisit codes of conduct and similar policies. The recommended step is an audit identifying rules that inadequately protect against negative communications about the company or customers, personal attacks on other employees, insubordination to management, or disclosure of confidential information.

Where is the Board law heading?

A roadmap of sorts already exists. In a brief filed September 11, 2026, in Atlassian Corp., Case 16-CA-324917, the General Counsel's office urged the Board to overturn both McLaren Macomb and Stericycle. The brief argues for a slightly different approach to severance agreements and work rules than pre-Biden-era cases provided, but states that a return to older precedent would be far preferable to the current standards.

Carey also highlighted Amazon.com Services, LLC, 373 NLRB No. 136 (2024), which prohibited so-called captive audience meetings. Before that decision, companies could require employees to attend on-the-clock meetings discussing the pros and cons — generally the cons — of unionization. If the case is overturned, employers should revisit their communications strategies and consider whether to employ or reinstate such meetings.

What should HR do now?

HR leaders should not assume a likely reversal permits an immediate return to mandatory meetings. While the current rule stands, employers should keep meeting attendance voluntary, communicate that no retaliation will follow a decision not to attend, and train managers not to pressure employees directly or indirectly.

Preparation can run in parallel. HR teams can build voluntary educational sessions, manager talking points, and a rapid implementation plan activated only if the Board changes the governing standard. With the General Counsel's positions now on record in both the memorandum and the Atlassian brief, employers should expect Board law on severance agreements and work rules to shift in the coming months.