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With the National Labor Relations Board (“NLRB”) currently lacking a quorum, it seemed like a good opportunity to take a look at several Biden-era NLRB decisions which are highly vulnerable for reversal once the board is fully seated. The most vulnerable Biden-era NLRB decisions were those which explicitly reversed decisions from the first Trump administration. The prior decisions provide us with a looking glass for what changes that we may see going forward. Although there has been no formal statement from the administration regarding its intent to roll back these decisions, industry groups are actively lobbying for their reversal.

These decisions all pertain to Section 7 of the National Labor Relations Act, which protects all employees—whether in unionized workplaces or not—from infringement on their right to advocate on behalf of themselves and their co-workers regarding the terms and conditions of their employment.

  • Stericycle, Inc., 372 NLRB No. 113 (2023) – The Stericycle decision was an explicit reversal of a Trump-era NLRB decision which addressed Section 7’s view of facially neutral employment rules or policies. The Biden NLRB rejected the prior standard of giving greater deference to the employer and its legitimate business interests. Instead, in this 2023 decision, facially neutral employment rules are presumptively invalid if a reasonable employee “could” interpret them to constrain employees’ Section 7 rights. The board intended for this inquiry to be case-by-case inquiry rather than creating a clear litmus test. The NLRB may return to a less employee-friendly standard that is more deferential to employers so long as their facially neutral policy is narrowly tailored to advance legitimate and substantial business interests.
  • McLaren Macomb, 372 NLRB No. 58 (2023) – This was a very impactful decision governing permissible language in severance agreements. The NLRB’s decision deemed broad confidentiality and non-disparagement language to be an unlawful restraint on employees’ Section 7 activities, and even the act of offering a severance agreement would be a violation of Section 7. Prior Trump-era precedent permitted broad confidentiality and non-disparagement provisions, and we may see a return to the prior Trump-era standard.
  • Lion Elasomers, LLC II, 372 NLRB 83 (2023) – This decision, which I discussed in more detail in a 2023 blog post, may have caused some employers a bit of whiplash, as it was a reversal of a Trump-era decision, which was a reversal of an Obama-era decision. Under Lion Elastomers, employers are limited in their ability to discipline employees for verbally abusive behavior if that incivility contains even a suggestion of protected activity (concerted advocacy regarding terms and conditions of employment). A return to the standard imposed by the prior Trump NLRB is expected, in which employees deploying this type of language were not protected from discipline even if these statements were uttered in the course of otherwise protected activity.
  • Home Depot USA, Inc., 373 NLRB No. 25 (2024) – This 2024 decision protected employees’ display of political messages not directly related to their employment on their uniform apron. A Home Depot employee was displaying “Black Lives Matter” messaging on his uniform and the employer conditioned continued employment on the employee’s removal of the messaging. The NLRB found that display of the messaging was protected concerted activity because it was a “logical outgrowth” of previous employee protests regarding workplace race discrimination. The Trump NLRB will likely return to a standard where the employer has greater discretion to keep political statements and messages out of the workplace, and to maintain a uniform appearance among customer-facing employees.
  • American Federation for Children, Inc., 372 NLRB No. 137 (2023) – In this decision, the Biden NLRB broadened the definition of “mutual aid and protection” to hold that employees’ efforts to advocate on behalf of non-employees fell under the scope of Section 7 as long as it might also benefit employees at some point. This decision also reaffirmed that job applicants are statutory employees for the purpose of the NLRA. The prior standard excluded advocacy on behalf of non-employees from the definition of concerted protected activity, and we may see a return to that standard.
  • The Atlanta Opera, Inc., 372 NLRB No. 95 (2023) – Independent contractors are not covered by the National Labor Relations Act, so this decision dug into classification of employees versus independent contractors for the purposes of NLRA application. Under this decision, the NLRB found that employees who may have previously qualified as independent contractors were statutory employees based on a multi-part standard that does not give greater weight to whether the worker has other entrepreneurial opportunities. This decision narrowed the classification analysis and expanded the umbrella for who is considered to be a statutory employee. The expectation is that the Trump NLRB will develop a test that more easily renders someone an independent contractor.