After being sworn in on January 7, 2026, National Labor Relations Board (“NLRB”) General Counsel (“GC”), Crystal Carey, announced agency enforcement priorities. In a notable departure from her predecessors, Carey did not immediately issue advice memoranda outlining her intent to overturn precedent. Instead, Carey remains focused on clearing the NLRB’s backlog that resulted from the 2025 federal government shutdown and nearly a year of a lack of a quorum amongst the Board members.
However, on February 27, Carey issued GC Memorandum 26-03 (“GC 26-03”) to outline the agency’s enforcement priorities, including a relaxation of scrutiny in case-handling practices. Notably, GC 26-03 reinforces the agency’s continuation of prior guidance, clarifies expectations during settlement, outlines the expectations for the NLRB’s role in scrutinizing employer policies, and details evidence-collection practices in unfair labor practice charge cases. Each of these efforts is summarized below along with other important updates from the NLRB.
NLRB GC Endorses Precedent
In GC 26-03, Carey confirmed that the agency will continue to operate under existing directives, including directives issued by the former Acting General Counsel, William Cowen. These directives include rescinding General Counsel Memoranda issued under former General Counsel, Jennifer Abruzzo, as well as the implementation of an agency-wide docketing protocol.
GC Carey also clarified that she no longer intends to overturn specified key Board decisions, despite former GC Abruzzo’s stated intent to do so. First, Carey seeks to uphold Ex-Cell-O Corp., 185 NLRB 107 (1970), in which the NLRB found that the Board lacks authority to order financial “make whole” remedies for employees in cases where an employer refuses to bargain with a union pending union certification. Second, Carey will not seek to overturn Care One at New Milford, 369 NLRB No. 109 (2020), which permits employers to issue discretionary discipline to employees without bargaining before a first union contract is signed. And finally, Carey will not seek to overturn Caesars Entertainment, 368 NLRB No. 143 (2019), which permits employers to restrict their email and IT systems for nonwork purposes, including union organizing.
Maintaining these key labor precedents will continue to give flexibility to employers to manage their workforces, both union and non-union.
NLRB Advances New Approach to Employer Handbooks and Policies
The NLRB will also no longer seek to bring charges against employers on the sole basis of maintaining unlawful rules or policies, as was the practice of the NLRB under former GC Abruzzo. Instead, per GC 26-03, the NLRB will focus on addressing unlawful policies only where they coincide with allegations for enforcement of such policies or where evidence is presented that such policies are actually impacting employees.
In line with this approach, Carey has instructed the NLRB Regions to promptly settle any pending complaints or merit charges involving only the maintenance of unlawful rules. For employers faced with allegations for maintaining potentially unlawful rules, the NLRB will likely not seek a complaint or a merit finding if the employer willingly modifies the rule. In short, Carey has instructed the Regions to only prosecute clear, facial violations.
Employers should continue to review workplace policies for any potential violations and modify where necessary, since the NLRB will still continue to prosecute rules that obviously restrict an employee’s Section 7 rights when charges are raised.
NLRB GC Encourages Settlements
In GC 26-03, Carey also emphasizes that the NLRB will seek to advocate for settlement over litigation where feasible. In the directive, Carey instructed the Regions to approve lawful settlements negotiated between the parties and permit withdrawal of charges, even if some allegations remain. Notably, GC 26-03 restricts enhanced remedies, such as notice readings, apology letters, and nationwide postings, and emphasizes that such remedies should not be routine in enforcing the National Labor Relations Act (“NLRA”).
This movement away from litigation will give employers the opportunity to settle cases with the NLRB and its employees or unions before engaging in burdensome litigation.
Deferral of Unfair Labor Practice Charges
Consistent with the NLRB’s enforcement priorities under former Acting General Counsel William Cowen, GC Carey has reiterated the agency’s interest in deferring unfair labor practice charges to the privately negotiated dispute resolution processes in parties’ collective bargaining agreements. The Agency’s stated goal in urging the Regions to assess whether unfair labor practice charges can be deferred is to allow for more efficient and judicious investigation of those charges that cannot be deferred. Overall, it is anticipated that the increased deferral of charges will likely allow the agency to clear its current backlog of cases more quickly.
In addition to seeing more cases deferred to arbitration, employers can expect to see pending charges, including those that have been dormant for some time, to be investigated in the near future.
NLRB Codifies Joint Employer Standard
Finally, as of February 27, 2026, the NLRB codified its joint employer rule. The NLRB’s actions effectively reinstate the 2020 standard for joint employer status and formally withdraw the 2023 standard that was struck down in federal court.
Under the current joint employer test, an employer will be considered a joint employer only if it possesses and exercises substantial direct and immediate control over at least one essential term of employment. Notably, the rule requires that control be “regular or continuous” and expressly excludes sporadic, isolated, or de minimis control of the term(s) of employment. The essential terms and conditions of employment include (1) wages, (2) hours of work, (3) assignment of duties, (4) supervision, (5) hiring, (6) firing, (7) discipline, and (8) working conditions.
Overall, the return to the 2020 standard should alleviate the years of uncertainty regarding the NLRB’s joint employer test. This rule provides more clarity for employers and places the focus of the joint employer test on the actual immediate control of the employee.
We will continue to track developments as to the NLRB’s priorities and its impact on employers. If you have questions on this or any other labor law issue, please contact Hope Goldstein at hgoldstein@vedder.com, Bill Whalen at bwhalen@vedder.com, or any other member of the Vedder labor team.
