The National Labor Relations Board on Feb. 14 rescinded several enforcement guidance documents issued during the Biden administration in a bid to shift the agency’s policy stance.
The affected documents addressed a swath of areas within NLRB’s purview. One of them, a 2022 memo by former General Counsel Jennifer Abruzzo, said employers’ workplace surveillance programs, artificial intelligence tools and similar technologies may interfere with workers’ ability to exercise their rights under the National Labor Relations Act.
NLRB also rescinded Abruzzo’s 2022 memo on the potential NLRA violations posed by noncompete agreements, her 2024 memo directing staff to pursue “make-whole relief” for employees as well as her 2021 memo stating that certain NCAA student athletes should be considered employees under the law.
Other documents have been rescinded pending further guidance, such as a 2021 memo identifying NLRB policies and procedures for assisting immigrant workers whose NLRA rights are violated as well as a 2024 memo explaining the board’s enforcement framework in light of its Cemex decision, which revived a 1949 standard for determining when employers must bargain with unions in the absence of a representation election.
In a statement announcing the changes, Acting General Counsel William Cowen cited the agency’s case backlog as a primary reason to rescind the Biden-era documents. NLRB saw a 10% increase in cases filed with the agency between its 2022 and 2023 fiscal years, with 2023’s total then representing the highest number of cases filed in one year since the board’s 2016 fiscal year.
“Over the past few years, our dedicated and talented staff have worked diligently to process an ever-increasing workload,” Cowen wrote. “Notwithstanding these efforts, we have seen our backlog of cases grow to the point where it is no longer sustainable. The unfortunate truth is that if we attempt to accomplish everything, we risk accomplishing nothing.”
During the first months of the Biden administration, NLRB leadership similarly rescinded enforcement documents issued during President Donald Trump’s first term. Cowen’s announcement signals that NLRB will likely re-examine decisions made during Abruzzo’s term, but “change typically happens slowly, as cases still must work their way through the Board’s administrative process,” attorneys for Littler Mendelson said in a Feb. 14 analysis.
The board also lacks a quorum following Trump’s controversial dismissal of Democratic member Gwynn Wilcox, who has since filed a lawsuit seeking reinstatement. Without a quorum, NLRB could experience further backlogs, one attorney previously told HR Dive.
