NLRB Plans to Overturn McLaren Macomb, Shifting Labor Law Landscape
NLRB General Counsel issues memo to challenge McLaren Macomb and other precedents.
Why it matters: Labor and corporate counsel must revise strategies as the NLRB signals a significant regulatory shift away from Biden-era protections.
- On August 26, 2026, NLRB General Counsel Crystal Carey issued Memorandum GC 26-04 targeting McLaren Macomb and other Biden-era labor decisions.
- McLaren Macomb (2023) deemed broad non-disparagement and confidentiality clauses in severance agreements unlawful under the National Labor Relations Act.
- Carey filed an answering brief in Valley Radiology advocating overturn of McLaren Macomb.
- NLRB shifted to a Republican majority on August 7, 2026, enabling the potential reversal of these labor precedents.
On August 26, 2026, NLRB General Counsel Crystal Carey issued Memorandum GC 26-04 outlining her intent to challenge several key Biden-era labor precedents. The most notable target is the McLaren Macomb decision of 2023, which held that broad non-disparagement and confidentiality clauses in severance agreements violate Section 8(a)(1) of the National Labor Relations Act because they infringe on employees’ rights under Section 7.
General Counsel Carey has gone beyond issuing a memo, filing an answering brief in the Valley Radiology, P.A. case (10-CA-324512) urging the Board to overturn McLaren Macomb. The memorandum also casts a wide net, challenging other Biden-era precedents such as rules on captive audience meetings, work rules, and employer statements predicting effects of unionization.
This strategic pivot has become feasible after the NLRB shifted to a Republican majority on August 7, 2026, following Senate confirmation of James Macy and reconfirmation of David Prouty. Legal experts, including Evan H. Cohn and Douglas C. Anspach Jr., anticipate that "employers should expect the Board to restore employers’ latitude to include reasonable, narrowly tailored confidentiality and non-disparagement clauses, with carve-outs preserved only for core protected concerted activity."
Donald W. Schroeder and Laura Stateler emphasize that this memorandum signals "potentially significant changes ahead for employers, unions, and practitioners to navigate if her intentions come to fruition." Labor attorneys and corporate counsel should prepare for adjustments in union negotiations and labor dispute strategies as the regulatory environment evolves.
By the numbers:
- August 26, 2026 — Date NLRB General Counsel Carey issued Memorandum GC 26-04
- August 7, 2026 — Date NLRB gained a Republican majority enabling potential precedent reversal
- 2023 — Year McLaren Macomb ruling was issued
What's next: Watch for Board rulings on Valley Radiology and related cases that may formally overturn Biden-era precedents.