Top Five Labor Law Developments for August 2026

1. National Labor Relations Board General Counsel (GC) Crystal Carey identified the Board precedents she has challenged or plans to challenge while continuing backlog reduction as her principal priority. In GC Memorandum 26-04, GC Carey summarized her positions seeking reversal of Biden-era precedent governing severance agreements, consent orders, work rules, captive audience meetings, employer predictions about unionization, dress codes, and contractual waiver of bargaining rights. She also identified six additional areas she intends to challenge if the opportunity arises, including bargaining orders, unilateral change standards, union objector fees, protected concerted activity, dues checkoff, and enhanced remedies. The memorandum does not require Regions to submit cases involving these issues to the Division of Advice. It instead directs them to continue investigating and, if warranted, prosecuting cases under existing Board law. The memorandum offers an early indication of where Board law may shift as appropriate cases reach the Republican-majority Board.
    
2. California and Illinois advanced state-run collective bargaining models for rideshare drivers classified as independent contractors. California’s Public Employment Relations Board certified the California Gig Workers Union as the bargaining representative for a statewide unit of transportation network company (TNC) drivers after finding that at least 30% of active drivers authorized the union to represent them. The union now represents all drivers in the unit and may bargain with covered TNCs over terms and conditions of work. Illinois enacted similar legislation creating a state-supervised process for rideshare drivers to organize and bargain on an industrywide basis. With both states joining Massachusetts in creating bargaining frameworks for workers whose independent contractor status generally places them outside the National Labor Relations Act, other states may consider similar legislation. Further expansion could invite challenges over the boundaries between state authorized bargaining and federal labor law. 
    
3. The U.S. Court of Appeals for the Second Circuit rejected the Board’s standard for evaluating workplace dress codes that restrict union insignia. Siren Retail Corp. v. NLRB, Nos. 24-3168, 24-3298 (2d Cir. Sept. 2, 2026). The court held that the Board’s standard under Tesla, Inc., 371 NLRB No. 131 (Aug. 29, 2022), improperly subjected even partial restrictions on union insignia to a presumption of unlawfulness and required employers to narrowly tailor their asserted special circumstances for the restriction rather than adequately balancing employees’ Section 7 rights against employers’ legitimate business interests. Concluding that its prior decision permitting a materially similar policy controlled, the court also rejected the Board’s finding that the employer’s policy permitting employees to wear only one pin on their uniforms violated the Act. The court denied enforcement of the remaining dress code findings and remanded the case to the Board to apply a more balanced standard that considers the extent of the restriction, whether the policy is neutral and consistently enforced, and the surrounding circumstances. The decision aligns with GC Carey’s position that the Board should move away from Tesla toward a more balanced framework for evaluating workplace dress code restrictions.
    
4. A New Jersey federal district court entered a final judgment holding that the Act preempts the state’s labor peace agreement requirement as applied to the cannabis business plaintiffs. Curaleaf Holdings Inc., et al. v. New Jersey Cannabis Regulatory Commission, et al., No. 3:25-cv-16397 (D.N.J. Aug. 10, 2026). The court previously denied the plaintiffs’ request for injunctive relief but concluded that New Jersey’s requirement that cannabis licensees enter into labor peace agreements is preempted by the Act under the U.S Supreme Court’s decisions in Garmon and Machinists. Following that opinion, the parties agreed that no further factual development was necessary and jointly asked the court to enter final judgment on the preemption claim, allowing New Jersey to seek appellate review in the U.S. Court of Appeals for the Third Circuit, where the case currently sits.
    
5. The Board upheld an arbitration policy’s savings clause and most of its confidentiality provision but struck down a restriction on disclosing the existence of an arbitration. Ralphs Grocery Co., 375 NLRB No. 25 (Aug. 10, 2026). On remand from the U.S. Court of Appeals for the Ninth Circuit, the Board held that the policy could not prohibit employees from disclosing the existence of an arbitration because that restriction interfered with Section 7 rights and was not protected by the Federal Arbitration Act. The Board also found that the policy could require confidentiality concerning content and outcome of arbitration proceedings, and that employees could not reasonably read the policy to restrict access to the Board because a prominent savings clause expressly preserved their right to file charges. The decision highlights the importance of clearly preserving employees’ right to file Board charges in arbitration agreements and defining the scope of any confidentiality provisions.

Please contact a Jackson Lewis attorney with questions about these and other workplace developments.