New NLRB Appointees Could Lead to Employer-Friendly Labor Law Changes

On August 7, the Senate confirmed James Macy and David Prouty to serve on the NLRB. These nominations restore the Board to its full five-member strength and cement a 3-2 Republican majority. This is critical because, per long-standing practice, the NLRB requires a three-member majority to overturn precedent. 

Until this point, the Board lacked the quorum needed to overturn Biden-era labor law decisions, which have remained in place through the first two years of President Trump’s term in office. This is now set to change. Below, we identify key Biden-era decisions that may be reversed, and their practical impact for both unionized and non-union employers.

Organizing and Election Procedures

Cemex Construction Materials Pacific, LLC (2023) was one of the most significant NLRB decisions in years. Previously, it was incumbent on a union to file for an election, and any violations of labor law committed by the employer resulted in a re-run of that election. Under Cemex, employers who receive a union recognition demand must either recognize the union or file an election petition within 14 days. Further, if the employer commits any unfair labor practice during the campaign, the Board can bypass the election entirely and order bargaining. 

A reversal of Cemex could provide relief to employers, both by removing the requirement to file their own election petition and the threat of an automatic bargaining order following an unfair labor practice finding. 

Employer Speech and Union Campaign Conduct

A 2024 decision overturned 75 years of precedent, holding that employers may no longer require employees to attend meetings during work hours at which the employer shares its views on unionization. So-called “captive audience” meetings had been an important tool for employer campaign strategy, allowing management to directly communicate with employees. A Republican-majority Board may restore the ability of employers to conduct mandatory employee meetings. 

Another 2024 NLRB decision similarly restricted the ability of employers to communicate with their employees during a union election campaign. Previously, employers could tell employees that unionization could result in the loss of their direct relationship with management. The Biden NLRB adopted a tougher standard, generally prohibiting such categorical statements and reviewing these messages strictly on a case-by-case basis. Combined with the Cemex framework, an employer who made the wrong statement could face a bargaining order, rather than an election. 

Workplace Rules and Employee Handbooks

Stericycle, Inc. (2023) replaced the previous employer-friendly framework with a standard under which workplace rules are presumptively unlawful if they “could” be interpreted to restrict Section 7 rights — as viewed from the perspective of an “economically dependent” employee. A rule can be invalidated even if the employer has never applied it to restrict protected activity. Standard provisions addressing confidentiality, professionalism, social media, and workplace civility all became legally suspect. If the NLRB returns to the prior standard, employers may gain greater clarity on permissible policy and handbook language. 

Remedies

Thryv, Inc. (2022) expanded the NLRB’s make-whole remedies to include all “direct or foreseeable pecuniary harms” — such as credit card interest, out-of-pocket medical costs, and other downstream financial harms. Previously, the NLRB’s remedies were limited to more predictable damages such as back-pay. 

Severance Agreements

McLaren Macomb (2023) held that employers violate the National Labor Relations Act (NLRA) by offering severance agreements containing broad non-disparagement and confidentiality provisions. Under this ruling, the mere proffer of a severance agreement with such provisions is unlawful because it has a reasonable tendency to interfere with, restrain, or coerce employees in the exercise of their Section 7 rights. This decision overturned prior Trump-era Board precedent that had permitted such provisions absent a showing of coercive conduct. Republican Board members have signaled a willingness to reconsider McLaren Macomb, and a reversal could restore the ability of employers to include customary confidentiality and non-disparagement clauses in severance agreements without risk of an unfair labor practice finding.

Joint Employer Standard

The Biden-era NLRB issued a 2023 final rule broadening the standard for determining joint employer status under the NLRA. Under the Biden rule, two entities could be deemed joint employers if one possessed the authority to control essential terms and conditions of employment — even if that control was indirect or never actually exercised. A federal court in Texas vacated the rule before it took effect, and the NLRB formally rescinded it in early 2026, returning to the Trump-era 2020 standard, which requires a showing of “substantial, direct, and immediate” control over essential employment terms. While the Biden-era Joint Employer Rule is no longer in effect, the full Board may now cement this employer-friendly standard through adjudication, providing greater certainty for franchisors, staffing companies, and other businesses that rely on contractor or subcontractor relationships.

Union Access to Private Property

Bexar County Performing Arts Center Foundation d/b/a Tobin Center (Bexar County II) (2022) expanded the rights of off-duty contractor employees to access private property for union organizing activity. The Biden NLRB reinstated the Obama-era New York New York Hotel & Casino standard, under which property owners may not exclude off-duty contractor employees from engaging in Section 7 activity on the premises unless the activity would cause “significant interference” with the use of the property or the owner has a legitimate business reason for exclusion. This overturned the Trump-era Bexar County I standard, which had given property owners broader authority to restrict access. A reversal of Bexar County II could restore greater property rights for employers and limit union representatives’ ability to solicit off-duty employees on private premises.

What Employers Should Know

Employers may want to monitor NLRB decisions for their potential impact on employee-relations issues. For employers addressing union organizing, the potential restoration of mandatory meetings, changes to the Cemex rules, and a return to broader property-owner rights under Bexar County I will greatly impact union campaign strategy. For non-union employers, any changes to the standard for workplace rules, the enforceability of severance agreement provisions, and the joint employer standard could have a significant impact on how policies and agreements are reviewed and drafted. Front-line supervisors trained on labor law may wish to stay informed of any changes.

ArentFox Schiff will continue to monitor developments at the NLRB and report on significant changes as they occur.