The National Labor Relations Board (NLRB) is an independent federal agency responsible for enforcing U.S. labor laws. It oversees private-sector employees’ rights to form unions, engage in collective bargaining, and even draft policies or severance agreements. California private schools fall under the jurisdiction of the NLRB even if they are not unionized.
Changes in Presidential administrations often influence the NLRB’s positions, as board members are appointed by the sitting president and typically reflect the administration’s labor policies. This year seems no different. On February 14, 2025, the NLRB’s Acting General Counsel, William B. Cowen, rescinded several memoranda issued during the Biden administration. This action followed the Executive Order issued by President Trump titled “Initial Rescissions of Harmful Executive Orders and Actions,” which mandated the review and rescission of certain policies from the previous administration.
General Counsel memoranda do not have the authority of law or regulation. Rather, the memoranda are issued to NLRB field offices and Washington offices by the General Counsel to provide policy guidance. The rescinding of the Biden era memoranda, suggest a significant shift in the NLRB’s priorities.
Here are some of the key changes affecting California private schools:
- Severance Agreements: The rescission of Memorandum GC 23-05 withdraws prior NLRB guidance restricting non-disparagement clauses and confidentiality agreements in severance agreements. In a severance agreement, the employer typically offers the employee a sum of money in exchange for the employee relinquishing certain rights, such as the right to sue the employer. The memo had advised that the use of non-disparagement and confidentiality provisions in severance agreements violated employees’ rights under Section 7 of the National Labor Relations Act (“NLRA”) as they could prevent employees from discussing workplace misconduct, discrimination, or union-related activities. The rescission action intimates fewer limitations on including these types of provisions in severance agreements.
- Electronic Monitoring and Workplace Surveillance: The withdrawal of Memorandum GC 23-02 signals a more lenient approach to protections for employees regarding workplace surveillance and electronic monitoring. Specifically, the memo stated that monitoring employees through AI-productivity tracking, keystroke logging, and facial recognition software could have a chilling effect on employees’ ability to engage in protected activities.
- Non-compete Agreements: Memoranda GC 23-08 and GC 25-01 had stated the NLRB’s interpretation that non-compete agreements in employment contacts and severance agreements were violations of the NLRA. The NLRB had instructed that the provisions restricted employees’ ability to seek better job opportunities and discouraged collective action. California, however, has separate laws prohibiting non-compete agreements except in limited situations.
- Unfair Labor Practices: Memoranda GC 21-06 and GC 21-07 had suggested expanded consequences for employers found guilty of unfair labor practices. Specifically, they supported employees seeking remedies for emotional distress, reinstatement rights, and funding for organizing efforts. The rescission of these memoranda hint that the NLRB will likely take a more lenient approach in penalizing employers for unfair practice charges in the future.
Overall, the rescission of the memoranda allow greater employer control over the workplace, at least from the standpoint of federal NLRB enforcement. Private schools should bear in mind this shift when assessing the risk of taking certain employment actions, such as including certain details in severance agreements. At the same time, the substantial protections afforded employees under California law remain, which private schools must continue to consider when making employment decisions. LCW attorneys are closely monitoring President Trump’s Executive Orders and any associated developments. Please also see LCW’s Executive Order Summaries here.
