LITIGATION TRENDS 2025 | 53 T O C E M P E S G A N T I I P C A P R O W C S P O R T C O N T A C T I N T A P P P A T C C L S E C according to Ms. Abruzzo, deter employees from exercising their NLRA rights. As with previous administration turnovers, however, the new General Counsel, whenever he or she is named, is likely to rescind prior GC memoranda, possibly including this one. Employers, particularly those with interstate operations, must continue to be cognizant of the various statespecific requirements in the restrictive covenant arena. Developments Under the National Labor Relations Act In 2024, the National Labor Relations Board continued to expand protections for workers under the National Labor Relations Act. As with the previous Trump Administration, however, employers and employees may expect new General Counsel initiatives and NLRB decisions to unwind many of the Biden Board’s decisions. “Captive Audience” Meetings. In November 2024, the NLRB ruled in Amazon.com Services LLC, 373 NLRB No. 136 that employer-required meetings held during work hours for the purposes of expressing an employer’s view on unionization (often called “captive audience” meetings) violate the NLRA despite the contents of such meetings. Previously, the NLRB permitted these types of meetings if the employer otherwise did not run afoul of the Act. The Board in Amazon, however, banned such meetings as coercive of employees’ rights under the National Labor Relations Act. Not all employerled meetings covering unionization, however, are unlawful under Amazon. Rather, employers must give employees reasonable advance notice of the meeting and clarify that attendance is voluntary, without repercussions, and will not be recorded. As a result, employers should monitor further decisions from the Board in this space, including any guidance from the General Counsel’s office, while also keeping in mind that the Amazon decision is (at-present) the prevailing precedent. Expansion of Protected Concerted Activity. The NLRB expanded the scope of concerted activity covered by the NLRA in Home Depot, Inc. 373 NLRB No. 25 (2024). The NLRA protects “concerted” activity – activity involving two or more employees. Here, the NLRB found an employer violated the Act by requiring an employee to remove “BLM” (an abbreviation of “Black Lives Matter”) from the company apron to comply with its dress code policy. The NLRB reasoned this employee’s individual activity was concerted activity because it was the “logical outgrowth” of previous workplace complaints about racial discrimination and harassment. In the wake of Home Depot, employers must take special caution when dealing with potential protected concerted activity – even if on its face the activity in question may not at first appear to involve two or more employees. Return to the “Clear and Unmistakable Waiver” Standard. In one of the last acts of the Biden Board, the NLRB returned to the “clear and unmistakable waiver” standard for analyzing whether unilateral changes to employees’ terms and conditions of employment violate the Act. In Endurance Environmental Solutions, LLC, 373 NLRB No. 141 (Dec. 10, 2024), the Board held that the “clear and unmistakable waiver” standard requires explicit contractual language to find that a union waived its right to bargain over a specific issue. This decision overturns the previous “contract coverage” standard, which applied ordinary contract interpretation principles to assess an employer’s unilateral change. Accordingly, explicit contractual language regarding waivers is recommended as a best practice. Employment 52 | Weil, Gotshal & Manges LLP
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