Labor Law Change Coming Soon?

08.19.2026

With recent U.S. Senate confirmations, the National Labor Relations Board (NLRB) has four of its five seats filled. Three of the four are Republicans selected by the current presidential administration. The lone Democrat was renominated by the current administration after originally being nominated in the prior administration 2021. It remains to be seen whether the vacant Democrat seat will be filled by the current administration.

The presence of five Board members, with the President’s party in control, is typically the point at which NLRB will begin to review pending cases in litigation for potential shifts in controlling labor law rules. In the meantime, now that there are three Senate-confirmed Board members, several impactful NLRB rulings from the panel under prior administration are expected to be overruled or modified. They include the following.

Cemex – under which a union could become the representative of employees simply by making a demand for recognition premised on a claim of employees’ majority support. This case has upended the union organizing process by forcing employers, rather than unions, to petition the NLRB for secret ballot elections to ensure that employees speak on whether or not to be represented.

Thryv – under which the NLRB sought to expand its array of remedies for unfair labor practices committed by employers (not unions). By adding an element of foreseeable consequences, beyond restoring actual losses like backpay, the NLRB beefed up case value and employer exposures with a notion of “consequential damages” previously unavailable other than in civil court lawsuits on non-NLRB issues.

Stericycle – under which employers’ facially neutral workplace policies could be declared unlawful if “a reasonable employee” could interpret them as chilling union or other concerted activity protected by the National Labor Relations Act (NLRA). This ruling has burdened employers to prove a rule is narrowly tailored to advance a legitimate business interest rather than to infringe upon employees’ rights.

Amazon – under which established law allowing employers to hold meetings with employees about unionization was overruled, putting employers at legal risk simply by holding meetings to communicate with their employees even if nothing threatening or coercive was said.

Lion Elastomers – under which employees were extended protection to engage in activities which employers considered to be insubordination and misconduct.

McLaren Macomb – under which the NLRB stepped into the fray on severance agreements containing confidentiality and non-disparagement language to find employers in violation of federal labor law.

Additionally, the election process has typically seen a rushed pace during Democratic administrations and a slightly less panicked pace with greater right to address disputed issues in pre-election hearing during Republican administrations. A modification of rules and corresponding process to slow it down is expected.

The NLRB is dealing with a historic case backlog on a national level which has slowed down action on most cases. With loss of staffing and an admitted need to hire in regional offices across the U.S., the NLRB is trying to catch up with the cases it has, not to mention those that continue to be filed.

Changes in the law will come principally from cases that are prosecuted which result in litigation and Board decisions. Given the NLRB has a settlement rate of roughly 90% on cases considered by the Agency to have merit for prosecution, and with what may be a softening of remedies, many unions may still be fearful of filing charges. In addition, unions may be more inclined to settle the cases they file rather than to roll the dice and litigate to conclusion with the result being a less favorable rule of law from the new NLRB panel.

Employers inclined to litigate their cases may see a greater likelihood of success in litigation with the current Board panel. And, if unsuccessful, employers still have the potential for review in a federal appellate court. Indeed, the DC Circuit has jurisdiction to accept review of Board rulings nationwide. And for those employers with a presence in the Fifth Circuit (some southern states), there have emerged court rulings which call into question the very constitutionality of the NLRA and its processes.

Given that the NLRA has been in effect since 1935 and was ruled by the US Supreme Court to be constitutional in 1937 (Jones & Laughlin Steel v. NLRB), labor law finds itself in interesting times.