HR and future of work · Industry brief

National Labor Relations Board General Counsel Crystal S. Carey has identified major labor-law precedents she intends to challenge, including the 2023 Stericycle decision on employer work rules, the 2023 McLaren Macomb decision on severance confidentiality provisions, the 2024 Amazon decision prohibiting mandatory captive-audience meetings on unionization, the Cemex decision on union-recognition procedures, and the Thryv decision expanding remedies for unfair labor practices. According to Carey's August 26 memorandum, she is prioritizing reducing the NLRB's case backlog while allowing potential precedent-changing cases to proceed through the agency; a reversal of Stericycle could significantly alter how employers draft handbook policies on workplace conduct, confidentiality, and social media. The memo provides a roadmap of anticipated doctrine shifts that could reshape employer compliance with the National Labor Relations Act, though regional offices continue applying existing Board law for now.

On August 26, 2026, NLRB General Counsel Crystal S. Carey issued Memorandum GC 26-04 signaling major shifts in federal labor law enforcement priorities under the Trump administration. The memo targets numerous Biden-era precedents for reversal through pending litigation, including decisions on severance agreement confidentiality clauses (McLaren Macomb), work rule standards (Stericycle), captive-audience meetings (Amazon.com Services), and employer statements about unionization effects (Starbucks/Siren Retail). Cases already in motion include Valley Radiology challenging confidentiality provisions, Amazon cases challenging consent order limits, Honeywell International challenging work rule restrictions, and UPS Supply Chain Solutions challenging captive-audience meeting prohibitions. The GC has also flagged additional precedents for future reversal attempts, including rules on bargaining orders without elections (Cemex), duty to bargain before contract changes (Wendt Corporation, Tecnocap), and union dues checkoff continuation post-expiration (Valley Hospital Medical Center). Employers with recent compliance revisions to severance agreements, handbooks, or dress codes should review provisions that were updated to comply with potentially vulnerable precedents, as the Board law landscape is expected to shift substantially over the coming months.

On July 7, 2026, the Ninth Circuit heard oral arguments challenging California Senate Bill 399, a "captive audience" law effective January 1, 2025, that prohibits employers from requiring employees to attend meetings or participate in communications on certain political, religious, or union-related topics. The California Chamber of Commerce and business groups argue the law violates employers' First Amendment rights and is preempted by the National Labor Relations Act; California counters that it regulates conduct, not speech. A federal district court preliminarily blocked SB 399 enforcement in September 2025. Key oral argument issues included whether challengers have standing for pre-enforcement review and whether the law impermissibly chills employer speech through content-based restrictions. Judge Tallman noted the U.S. Supreme Court has not applied the "captive audience" doctrine in private workplaces, raising questions about its application to employment. The Ninth Circuit has not yet ruled; the preliminary injunction remains in place pending decision. (Source: Hunton Employment & Labor Perspectives)

A magistrate judge in the Northern District of California issued a discovery ruling in Mobley v. Workday, Inc., a closely watched age discrimination case challenging Workday's AI-based applicant screening system. On May 29, 2026, the court denied plaintiffs' motion to compel Workday to produce customers' applicant data, holding that Workday lacked "possession, custody, or control" under Federal Rules of Civil Procedure because the vendor's Master Subscription Agreement assigned all data ownership to employers. The court also protected Workday's internal bias-testing data as attorney-client privileged but did compel production of Workday's own EEO-1 and OFCCP records. The ruling establishes that employers deploying AI hiring tools should negotiate clear contractual rights to their own applicant data and bias-testing results before signing with vendors, conduct regular disparate-impact testing regardless of intent, and maintain comprehensive recordkeeping beyond application forms to avoid adverse inferences in litigation or regulatory inquiries.