The National Labor Relations Board (“NLRB”) may not always be top of mind for employers, particularly those with non-unionized workforces. But the NLRB, and employees’ labor rights more broadly, are about far more than unions. Employers should take notice, as the NLRB has been particularly active in recent months, with important updates that could impact all employers—not just unionized employers.
Background of the NLRB and Employees’ Labor Rights
The NLRB is a federal agency tasked with enforcing the National Labor Relations Act (“NLRA”). The NLRA protects employees’ rights to engage in “protected, concerted activity,” meaning their rights to work collectively to improve the circumstances of their employment. On a nationwide basis, this activity is commonly seen through the unionization process. However, the NLRB’s reach extends well beyond just unions, and its decisions can have significant implications for employers regardless of whether their workforce is unionized.
For instance, the NLRA protects employees’ rights to discuss their wages, benefits, and other forms of compensation. In some circumstances, it can also protect employees’ rights to discuss the circumstances and conditions of their employment publicly (including on social media and with the media), and even employees’ rights to walk off the job in protest of certain working conditions. These rights are not limited to union employees. Employers that fail to stay abreast of these protections and the shifting legal landscape around them may get caught by surprise when an employee files a complaint with the NLRB and an investigation ensues. Maintaining awareness of NLRB requirements is essential for employers, regardless of whether they have unionized employees.
Recent Action from the NLRB
On August 26, 2026, the NLRB general counsel issued a memorandum discussing their current priorities. Many of these priorities are employer-friendly, a stark contrast to the more employee-friendly approach of the prior administration. One example is a move away from past precedent that limited an employer’s ability to utilize confidentiality and non-disparagement provisions in severance agreements. Another priority is overturning exceedingly employee-friendly precedent from the Biden era concerning circumstances wherein certain workplace rules might violate the NLRA. In short, the NLRB appears focused on more employer-friendly priorities.
In another example, the general counsel mentioned revisiting a Biden-era case titled Lion Elastomers, LLC, 372 NLRB No. 83 (2023) (“Lion Elastomers II”). Lion Elastomers II created an employee-friendly standard for determining whether an employee loses the protections of the NLRA when engaging in misconduct. The standard under Lion Elastomers II gave employees significant leeway during heated workplace exchanges and could change depending on the setting and circumstances of the employee’s misconduct. As a result, the standard from Lion Elastomers II made it difficult for employers to balance employee discipline and employee rights.
On September 23, 2026, the NLRB revisited Lion Elastomer II in Lion Elastomers, LLC, 375 NLRB No. 41 (2026) (“Lion Elastomers III”). In Lion Elastomers III, the NLRB returned to an employer-friendly standard. Under this standard, employees seeking to avoid discipline for misconduct must show that they engaged in NLRA-protected activity which the employer—who harbored animus towards that conduct—was aware of prior to the discipline. If the employee succeeds, the employer must prove it would have taken the same action even in the absence of the employee’s NLRA-protected activity. This standard will likely provide employers more latitude in managing their workplace discipline practices.
Takeaway for Employers
While occasionally overlooked, the NLRB remains an important consideration for employers—even those with non-unionized workforces. But employers should take note, even though recent developments suggest the NLRB may be moving in a more employer-friendly direction, the NLRB’s primary task is to protect employees’ labor rights, and even seemingly minor violations could invite significant scrutiny. Accordingly, employers should continue monitoring updates from the NLRB to ensure that they are in compliance with labor laws.
Please contact a member of the Brooks Pierce Labor and Employment team for assistance on any of these issues.