Labor & Employment Law Update

Although they may not realize it, even non-union employers face risk under the National Labor Relations Act. Everyday workplace decisions can trigger scrutiny and while the enforcement climate is shifting, the underlying risk remains. For employers, this is no longer a niche legal issue. It’s a legitimate business risk.

Business owners used to lose sleep over ordinary problems: rising costs, staffing shortages, difficult customers, and whether anyone in the office can operate the printer without filing a support ticket. But for a growing number of employers, the concerns keeping them awake at 2:00 a.m. include whether their employee handbook violates federal labor law, whether a supervisor’s offhand comment during a tense performance review could trigger an unfair labor practice charge, or whether an employee group text complaining about the schedule somehow became protected concerted activity under the NLRA.

The most surprising part? Many of these employers don’t have a union in sight.

The Most Common Misconception: The NLRB Is Someone Else’s Problem

✗  THE MYTH: "The NLRB only matters if I have a union. We don't, so we're fine."

 ✓  THE REALITY: The NLRA applies to most private-sector employers, union and non-union alike. Labor law entered your building long before any organizer did.

The NLRA protects concerted activity, not just union activity. Employees discussing wages, griping about scheduling, or coordinating complaints about a manager can all fall under Section 7 protection, regardless of whether a union is anywhere near the picture.

From HR Formality to Legal Minefield

For many employers, the employee handbook became an unexpected source of legal exposure. Policies designed to promote professionalism and workplace order, such as civility rules, confidentiality provisions, social media policies came under intense scrutiny under the Stericycle standard, which asks whether a policy could “reasonably chill” employees from engaging in protected activity.

To most business owners, this felt roughly like being told their smoke detector was violating federal law. And the questions that keep managers awake only get stranger from there:

• An employee vents about scheduling on a group text. Is that protected? (It might be.)
• A supervisor says something sharp during a difficult conversation. Could that be an unfair labor practice? (Depends on what they said.)
• Your confidentiality policy protects legitimate business interests. Does it also unlawfully restrict employees from discussing wages? (Worth checking.)
• The profanity in that employee’s complaint was genuinely alarming. Does the protection still apply? (Sometimes, yes. Sorry.)

The reality is that most NLRB problems don’t begin with a sophisticated anti-union campaign. They begin with one frustrated supervisor making one poorly worded comment in one stressful conversation. Unfortunately, the NLRB reviews those moments with the full benefit of hindsight, and hindsight is undefeated.

NLRB Enforcement Landscape in 2025–2026

• The Board went dark for most of 2025. Due to vacancies, expired terms, and political gridlock, the NLRB operated without a functioning quorum for much of 2025, a structural constraint that limited its ability to issue decisions or revise precedent during that period.
• A new Board majority arrived in late 2025. The Senate confirmed two new members and a new general counsel, Crystal Carey. This signaled a decisive pivot away from the Biden-era enforcement agenda. Employers should expect the Board to begin revisiting recent decisions that significantly expanded employee and union rights.
• The handbook calculus changed. Issued in February 2026, the guidance in Memorandum 26-03 instructs regional offices to de-emphasize cases involving unenforced, overbroad handbook rules. Regions should no longer request entire handbooks when only a single policy is at issue. The focus shifts to actual workplace disputes, not policy audits.
• The Stericycle standard survives… for now. Despite the broader shift, the test for whether a handbook policy unlawfully chills protected activity remains on the books. It may be revisited, but until it is, neutral-sounding policies can still draw scrutiny if they touch on sensitive areas.

What Employers Should Do Now

The employers best positioned going forward won’t be the ones that  panic or assume a more employer-friendly Board eliminates labor law risk. It will be the employers that treat labor relations as a business risk. Employers should:

• Review your handbook now. Overbroad policies create real exposure even under a more targeted enforcement regime. Policies lawful in 2022 may not be compliant under 2026 standards.
• Train your supervisors. One improvised comment in a difficult conversation can create liability that no policy manual can fix retroactively. This is where most problems start.
• Audit confidentiality and non-disparagement provisions. These remain high-scrutiny areas, particularly in severance agreements involving non-supervisory employees.
• Watch the Board in 2026. With a functioning quorum restored, the Board is expected to revisit significant precedent. The rules governing handbook review, union recognition, and protected activity may look different before year-end.

As a former NLRB trial attorney, I have seen firsthand that labor law issues are no longer niche legal problems. They are business risks, and the employers sleeping soundly are the ones who got ahead of them.