NLRB Acting General Counsel Rescinds Numerous General Counsel Memoranda of His Biden Era Predecessor

By Robert P. Brooks on February 18, 2025

On Friday, February 14, 2025, Acting General Counsel of the National Labor Relations Board, William B. Cowen issued General Counsel Memoranda 25-05 rescinding in full, numerous General Counsel Memoranda of his predecessor, Jennifer Abruzzo. Ms. Abruzzo had been appointed by President Biden to serve a four-year term as General Counsel on July 22, 2021, but she was terminated by President Trump on January 27, 2025. Mr. Cowen, who was appointed Acting General Counsel by President Trump on February 3, 2025, wasted little time undoing the extensive work done by General Counsel Abruzzo to implement far reaching protections for American employees under the guise of using Section 7 of the National Labor Relations Act (the “Act”) to protect employees from such things as the use of electronic monitoring devices in the workplace, confidentiality and non-disparagement provisions in settlement agreements and the terms of non-compete agreements.

During her tenure as General Counsel, Ms. Abruzzo was a staunch defender of the right of employees to engage in concerted protected activity as articulated in Section 7 of the Act. Section 7 protects employees in their right to discuss their terms and conditions of employment with their employer and each other, whether openly, or in private. During her tenure, General Counsel Abruzzo issued numerous General Counsel Memoranda using Section 7 to restrict employers from regulating their current and former employees in a number of different ways. This past Friday, Acting General Counsel Cowen rescinded these General Counsel Memoranda published by Ms. Abruzzo, seemingly restoring, in one stroke of his pen, many of the tools used by employers to protect their business interests.

A few of the General Counsel Memoranda rescinded by Acting General Counsel Cowen are the following:

• GC 23-02 restricting electronic monitoring and algorithmic management of employees in the workplace;
• GC 23-05 providing guidance to employers concerning the NLRB’s decision in McClaren Macomb which restricted the use of non-disclosure and non-disparagement clauses in settlement agreements covering employment claims; and
• GC 23-08 and GC 25-01 which restricted employers’ use of non-compete agreements to protect such intellectual property as customer lists, trade secrets and business goals and objectives.

Employers and the business community in general should view Acting General Counsel Cowen’s action in rescinding General Counsel Abruzzo’s Memoranda as a victory for employer rights. For example, GC 23-02, which dramatically restricted employers in the use of technology to monitor employee performance will no longer be in effect. While employers should be careful not to go so far as to violate the legitimate privacy interests of employees, particularly in spaces where they have a legitimate expectation of privacy, employers can now improve the productivity of their employees through the legitimate use of technology to monitor their performance.

The rescission of GC 23-08 and 23-01, which restricted the use of non-compete agreements, should also be viewed by employers as a step toward protecting their legitimate business interests. Non-compete agreements had been outlawed by Ms. Abruzzo as a restriction of the right of employees to quit their job and seek employment with a competitor for better wages and benefits. Although courts are increasingly willing to limit the scope of non-compete provisions, the rescission of these General Counsel Memoranda now allows employers to return to using legitimate non-compete agreements narrowly tailored to protect their legitimate business interests by limiting the ability of employees to use their knowledge of the employer’s business to benefit their employer’s competition.

The rescission of GC 23-05 is also an important development for employers. This Memoranda from Ms. Abruzzo dramatically limited employers use of non-disclosure and non-disparagement provisions in settlement agreements because of their so-called limit on employees’ exercise of their Section 7 rights to talk about the settlements they reach with their employers, as well as to talk badly about them. Now employers can reach settlement agreements with their employees, or former employees that protect their personal and business reputations, the confidentiality of the settlements they reach, as well as to protect the employer’s intellectual property (patents, copyrights, and trademark), as well as customer lists and confidential information regarding their company’s future goals and objectives.

These are just a few of the General Counsel Memoranda rescinded by Acting General Counsel Cowen. In the days ahead, there will be even more focus on how Acting General Counsel Cowen’s actions broadly effect employers’ business interests.