As employers plan for 2026, a significant development in Washington, D.C., deserves attention: the National Labor Relations Board is functioning again. On December 18, 2025, the U.S. Senate confirmed two new NLRB Board members, James Murphy and Scott Mayer. Also, it confirmed Crystal Carey as NLRB General Counsel, restoring the quorum the agency needs to issue decisions.
For businesses that have spent the last several years navigating fast-moving (and sometimes whiplash-inducing) shifts in federal labor law, this change matters. A Board that can decide cases again and a confirmed General Counsel who can set consistent enforcement priorities often signal a meaningful change in how the agency approaches union organizing disputes, employer communications, handbook rules, remedies, and severance agreements. Below, our friends at the Hoyer Law Group, PLLC discuss how the Nations Labor Relations Board could affect employers in 2026.
Why The NLRB “Quorum” Issue Changed Everything In 2025
The NLRB cannot issue decisions unless it has at least three members. For much of 2025, the Board lacked that quorum and effectively lost its ability to create or revise precedent through decisions. The quorum breakdown traces back to the January 27, 2025, firing of Board Member Gwynne Wilcox and the subsequent turmoil around Board composition and litigation, which left the agency unable to decide cases while charges continued to accumulate.
When the Board can’t decide cases, the enforcement “center of gravity” shifts. Regional offices still investigate unfair labor practice charges, and the General Counsel’s office still chooses which legal theories to pursue and which cases to litigate. But the absence of a working Board limits the system’s ability to clarify rules through precedential decisions. That dynamic can create uncertainty for employers because the agency continues to bring cases even while the adjudicatory body cannot resolve key questions quickly.
Why A Confirmed General Counsel Can Drive Real Change
The NLRB General Counsel functions as the agency’s chief prosecutor. The GC influences day-to-day labor law risk for employers by deciding what cases to issue complaints on, which novel theories to advance, and which types of conduct the agency targets for aggressive enforcement. With Crystal Carey confirmed as General Counsel on December 18, 2025, employers can expect more consistency in charging decisions and a more precise enforcement roadmap than they typically see under acting leadership.
In fact, even before the Board fully returns to regular decision-making, employers may see policy changes through updated prosecutorial priorities. The agency has already shown it can pull back on certain enforcement initiatives through rescissions or the narrowing of guidance documents. That shift can have immediate, real-world effects on workplace investigations and litigation posture.
The Labor-Law Areas Most Likely To Shift In 2026
Although the NLRB typically changes doctrine case by case, several subject areas stand out as likely targets for recalibration in 2026—especially where recent precedent expanded union leverage or increased employer liability.
Union organizing and representation elections sit near the top of the list. Employers have watched the agency experiment with frameworks that increase the consequences of mistakes in organizing campaigns, including approaches that can convert certain unfair labor practices into dramatic remedies such as bargaining orders. If the Board narrows those frameworks, employers may regain breathing room to insist on election procedures while still complying with the NLRA’s strict rules against threats, interrogation, or retaliation.
Employer communications during organizing campaigns also remain in focus. Recent decisions have raised the compliance stakes for common campaign practices, including mandatory meetings and employer messaging about how unionization can affect workplace processes. In 2026, a reconstituted Board may attempt to draw brighter, more workable lines that preserve employer speech rights while still policing coercion. The practical takeaway for employers is simple: even if the Board becomes more predictable, you still need disciplined messaging, trained supervisors, and careful documentation during any organizing activity.
Workplace rules and employee conduct represent another pressure point. Many employers revised handbooks and policies in response to standards that made routine rules vulnerable to challenge if an employee could interpret the rule as discouraging protected activity. Employers also faced increased risk when enforcing conduct standards during tense labor disputes, particularly where the lines blur between protected advocacy and misconduct. If the Board returns to more objective and employer-workable frameworks, employers may be able to write clearer policies and enforce them more consistently without inviting automatic scrutiny.
Remedies and the scope of “protected concerted activity” also matter. A series of decisions has broadened what employees can argue qualifies as protected activity and has expanded the types of financial relief the NLRB may seek. These expansions increase exposure and can raise settlement values even in cases where the underlying conduct looks less severe. A more employer-friendly Board may rein in these remedy theories over time, but employers should not assume those changes will happen overnight, as litigation, appeals, and Board decision cycles move slowly.
Finally, severance agreements and contractual waivers continue to create compliance headaches. Employers that rely on confidentiality, non-disparagement, and release language want certainty that these provisions will hold up. Because the NLRB has questioned standard severance terms in recent years, employers should expect continued attention to severance drafting in 2026, along with potential Board action to restore clearer contractual rules as cases reach the reconstituted Board.
What Employers Should Do Now
Even if doctrinal change takes time, employers can act now to reduce risk and position themselves for a more stable 2026. Employers should review handbook rules with NLRA considerations in mind, retrain managers on what they can (and cannot) say during protected activity or organizing campaigns, and audit severance templates to avoid language that the agency might claim chills Section 7 rights. Employers should also update response plans for union activity so that HR, operations, and legal leadership such as an experienced employment lawyer follow a consistent playbook instead of improvising under pressure.