The NLRB Is Shifting Toward Employers: 5 Rules That Could Soon Change

Good news may be on the horizon for U.S. employers. On August 17, 2026, James R. Macy joined the National Labor Relations Board (NLRB), giving Republicans a working majority on the Board.

Why does that matter? Over the past several years, the NLRB has issued a series of decisions that significantly narrowed employers’ options in managing workplace policies, union organizing, severance agreements, and employee conduct. With the new majority in place, several of those rules could now be revisited.

If you have questions about employee handbooks, severance agreements, union organizing, employee discipline, or other labor and employment compliance matters, please contact the ILS legal team at contact@consultils.com.

Employee Handbooks May Become Easier to Manage

For many employers, drafting workplace policies has become increasingly difficult.

One major reason is the NLRB’s 2023 decision in Stericycle, Inc.

The case involved several workplace rules in an employer’s handbook. The NLRB adopted a tougher standard for evaluating facially neutral policies: even when a rule serves a legitimate business purpose, it may still violate federal labor law if an employee could reasonably interpret it as restricting protected activity.

That put a wide range of common workplace policies under greater scrutiny, including:

• Confidentiality policies;

• Civility and respectful workplace rules;

• Social media and media communications;

• Internal investigation policies; and

• Solicitation and use of company property.

The practical problem for employers is easy to see: a policy designed for ordinary workplace management can create legal risk simply because it could be read too broadly.

The new Republican majority is expected to reconsider Stericycle and give greater weight to why an employer adopted a particular policy and the legitimate business interests behind it.

For employers: If the standard changes, companies may regain more flexibility to set reasonable workplace rules without worrying that every broadly worded provision could become an NLRB issue.

Employers May Have More Options When a Union Demands Recognition

Another major area to watch is union organizing.

The key case here is Cemex Construction Materials Pacific, LLC, decided in 2023.

Imagine a union approaches an employer with signed authorization cards and says: “A majority of your employees support us. Recognize the union.”

An employer does not necessarily have to accept that demand immediately and may seek a formal NLRB election.

But Cemex significantly raised the stakes. If the employer commits certain unfair labor practices that interfere with the election process, the NLRB may order the employer to recognize and bargain with the union rather than simply holding another election.

For employers, that means mistakes made during an organizing campaign can have much bigger consequences.

Cemex is already under pressure. In March 2026, the Sixth Circuit rejected the framework, and the new NLRB majority may now revisit the rule as well. If the Board moves back toward the traditional standard, secret-ballot elections could once again play a larger role in determining whether employees actually want union representation.

For employers: That could mean more room to respond to union recognition demands without the same risk that missteps during the process will automatically lead to a bargaining order.

Employers May Regain More Freedom to Speak During Union Campaigns

When employees are considering unionization, how much can an employer actually say? For decades, employers generally had the ability to hold mandatory meetings to explain their position on unionization, as long as they did not threaten, coerce, interrogate, or improperly promise benefits to employees. Then came the NLRB’s 2024 decision in Amazon.com Services LLC.

During union organizing activity, Amazon required employees to attend meetings where management discussed the company’s views on unionization. The NLRB ruled that employers could not require workers to attend these so-called “captive-audience meetings,” overturning a practice that had been permitted under federal labor law for nearly 80 years.

The new Republican majority is likely to revisit that decision. If Amazon is reversed, employers may once again have more freedom to:

• Require attendance at certain union-related meetings;

• Explain the company’s position on unionization; and

• Communicate more directly with employees during an organizing campaign.

There is still an important line employers cannot cross. Threats, coercion, unlawful interrogation, and promises of benefits can still violate federal labor law.

State law also matters. More than ten states have adopted their own restrictions on captive-audience meetings, so a change at the federal level would not necessarily give every employer the same freedom.

For employers: At the federal level, companies may soon have more room to make their case when employees are considering unionization.

Confidentiality and Non-Disparagement Clauses May Get More Breathing Room

Confidentiality and non-disparagement provisions are common in severance agreements. But the NLRB’s 2023 decision in McLaren Macomb made those provisions much harder to draft.

A hospital offered severance agreements to laid-off employees that included confidentiality and non-disparagement provisions. The NLRB found that broadly written provisions could unlawfully discourage employees from discussing workplace conditions or otherwise exercising rights protected by federal labor law.

More importantly, an employer did not necessarily have to enforce the provision to create a problem. Offering an agreement containing overly broad restrictions could itself violate the law.

The new NLRB majority may narrow that standard and give employers greater flexibility to protect legitimate interests such as:

• Confidential business information;

• Sensitive company information; and

• Company reputation.

For employers: If McLaren Macomb is narrowed, companies may regain some of the flexibility they previously had when drafting confidentiality and non-disparagement provisions in severance agreements.

Protected Activity May No Longer Give Employees the Same Leeway for Misconduct

Employees have the right to discuss wages and working conditions with coworkers, participate in union activity, and engage in other forms of protected concerted activity.

But what happens when an employee crosses the line while doing it?

Can an employer discipline an employee who insults a supervisor, becomes abusive, or engages in seriously inappropriate conduct during otherwise protected activity? That became more difficult after the NLRB’s 2023 decision in Lion Elastomers LLC.

The Board restored a broader standard under which employees may remain protected by federal labor law even when their conduct during protected activity becomes heated, offensive, or inappropriate.

That creates a difficult situation for employers: The company may believe it is disciplining the employee for misconduct, while the employee argues that the real reason was protected activity.

The new Republican majority may draw a clearer line between the two.

Employees would still have the right to engage in protected activity, but serious misconduct may no longer receive the same level of protection simply because it occurred in that context.

Another decision to watch is Thryv, Inc., which expanded the financial remedies available when an employer commits an unfair labor practice. The new Board may also move back toward more traditional limits on those remedies.

For employers: These changes could provide clearer boundaries for employee discipline and make potential liability in NLRB cases more predictable.

Good News for Employers—but Don’t Rewrite Your Policies Yet

Taken together, the direction is fairly clear. The new NLRB majority could give employers:

• More flexibility in workplace policies and employee handbooks;

• More options when responding to union organizing;

• Greater freedom to communicate with employees during union campaigns;

• More room to use confidentiality and non-disparagement provisions; and

• Clearer authority to address employee misconduct.

Overall, these are positive signals for employers. But there is one important distinction: the Board has changed; the law has not all changed yet.

Macy’s arrival does not automatically overturn Stericycle, Cemex, Amazon, McLaren Macomb, or other Biden-era decisions. The NLRB will generally need to address these precedents through future cases, and some changes may also face review in federal court.

For employers, the right move now is not to immediately rewrite every handbook or severance agreement. Instead, companies should identify policies that were changed in response to the prior NLRB and be ready to adjust once the new standards actually take effect.

After several years of increasingly restrictive NLRB decisions, the pendulum may finally be starting to swing back toward employers.

If you have questions about employee handbooks, severance agreements, union organizing, employee discipline, or other labor and employment compliance matters, please contact the ILS legal team at contact@consultils.com.

Disclaimer: The materials provided on this website are for general informational purposes only and do not, and are not intended to, constitute legal advice. You should not act or refrain from acting based on any information provided here. Please consult with your own legal counsel regarding your specific situation and legal questions.

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As Managing Partner at ILS, Richard Liu ranks among the leading U.S. attorneys in corporate, employment, and regulatory law. He is known for crafting legal strategies aligned with clients’ business objectives and advising Fortune 500 companies, startups, and executives on corporate transactions, financing, privacy, and employment matters across the technology, healthcare, and financial sectors.

Before founding ILS, Richard practiced at top defense firms, where he developed a reputation for anticipating risks and designing strategies that balance protection with growth. He has secured favorable outcomes in contract and intellectual property disputes, represented clients in state and federal courts, and is recognized for combining large-firm expertise with boutique-firm agility. Richard is also a frequent speaker at industry and legal conferences.

Email: contact@consultils.com | Phone: 626-344-8949