The National Labor Relations Board (NLRB) has rescinded more than two dozen guidance memoranda issued during the Biden administration, a move that legal experts say signals significant policy changes ahead. The action, announced on February 14 by Acting General Counsel William B. Cowen, could have far-reaching implications for nursing home operators navigating labor laws and workforce regulations.
Key Changes Affecting Employers
Among the rescinded guidance are memoranda addressing severance agreements, noncompete clauses, stay-or-pay provisions, and employer surveillance of workers. Many of these policies were intended to expand employee protections, particularly in unionized settings. The rollback suggests a shift toward more employer-friendly labor policies under the Trump administration.
“NLRB general counsels use these memoranda to set priorities and inform both field staff and employers about how they will handle emerging labor issues,” wrote attorneys Alex MacDonald and Elizabeth Carter of Littler Mendelson. “Rescinding these memos suggests an intention to make major policy changes at the NLRB.”
Implications for Nursing Home Operators
The long-term care industry, already grappling with workforce shortages and regulatory challenges, may see reduced scrutiny over employment agreements and union activities. Some key rescinded policies include:
- Severance Agreements: Guidance that restricted overly broad severance agreements, which could have deterred employees from discussing workplace conditions, has been revoked. Nursing homes may have more flexibility in structuring severance packages moving forward.
- Noncompete Clauses: The rescission of guidance limiting noncompete agreements means facilities could have greater ability to enforce these agreements with staff, potentially impacting turnover and employee mobility.
- Surveillance of Employees: Policies designed to protect workers from extensive employer monitoring, such as tracking movements via GPS or monitoring keystrokes, have been eliminated, potentially reducing compliance risks for facilities using workforce management technology.
These changes come as the nursing home industry faces ongoing labor challenges. According to the American Health Care Association (AHCA), nursing homes lost more than 200,000 workers during the pandemic and are still struggling to rebuild staffing levels. Policies that affect employment agreements and labor relations could play a critical role in workforce stability.
What Comes Next?
While the rescission of these policies represents a major shift, experts caution that significant changes will take time to unfold. “Change typically happens slowly, as cases must still work their way through the Board’s administrative process,” MacDonald and Carter noted. Moreover, the NLRB currently lacks a quorum, which may delay major rulings.
For nursing home operators, the immediate priority should be reviewing existing employment agreements and labor policies in light of these developments. The shifting regulatory landscape underscores the importance of staying informed and seeking legal counsel to ensure compliance with evolving labor laws.