Top Five Labor Law Developments for September 2026

1. The National Labor Relations Board restored the burden-shifting standard for employee misconduct during otherwise protected Section 7 activity. Lion Elastomers LLC, 375 NLRB No. 41 (Sept. 23, 2026) (Lion Elastomers III). The Board held that the U.S. Court of Appeals for the Fifth Circuit’s vacatur of Lion Elastomers, 372 NLRB No. 83 (May 1, 2023) (Lion Elastomers II), left General Motors LLC, 369 NLRB No. 127 (2020), as controlling precedent for determining whether an employee’s misconduct while engaging in otherwise protected activity lost the protections of the National Labor Relations Act. Under General Motors, the Board applies the Wright Line burden-shifting framework, allowing employers to impose discipline if they can establish that they would have taken the same action absent the employee’s protected activity. The decision marks the first significant shift in Board precedent since General Counsel (GC) Crystal Carey outlined her priorities for challenging precedent in GC Memorandum 26-04, which identified Lion Elastomers II and other Biden-era decisions for potential reconsideration.
    
2. GC Carey urged the Board to restore prior standards governing union recognition and bargaining orders. In a brief filed in a pending unfair labor practice case, GC Carey challenged the Board’s 2023 precedent-shift requiring employers to promptly petition for an election or voluntarily recognize a union after the union claims it has employees’ majority support. She argued that the standard conflicts with U.S. Supreme Court precedent in Gissel Packing Co. and Linden Lumber. GC Carey asked the Board to restore the prior rule allowing employers to decline voluntary recognition without filing an election petition, leaving the union responsible for seeking an election. The brief follows the GC’s issuance of Memorandum 26-04, which identified bargaining order standards among the precedents she intended to challenge. 
    
3. Delaware and Maryland became the latest states to restrict mandatory employer meetings concerning unionization. Delaware House Substitute 1 for H.B. 84 and Maryland’s Worker Freedom Act (S.B. 417) took effect Sept. 30 and Oct. 1, respectively. Both laws prohibit employers from penalizing employees who decline to attend employer-sponsored meetings or listen to communications expressing the employer’s political or religious views, including unionization. Maryland’s law also extends protections to job applicants. Neither law prohibits voluntary meetings or all employer communications concerning unions, and both contain exceptions for legally required and job-related information. Maryland’s law also authorizes heavy administrative penalties for violations. Delaware and Maryland bring the total to 15 states with captive audience meeting restrictions, joining Alaska, California, Connecticut, Hawaii, Illinois, Maine, Minnesota, New Jersey, New York, Oregon, Rhode Island, Vermont, and Washington. These laws continue to face legal challenges on First Amendment and federal preemption grounds. 
    
4. The Board held that employers need not disclose attorney-client privileged information in response to union information requests and that the traditional balancing test does not apply. Michigan Education Association, 375 NLRB No. 42 (Sept. 23, 2026). The union requested investigative reports and supporting materials from workplace investigations conducted by the employer’s outside counsel that the employer withheld based on attorney-client and work-product protection. The Board affirmed dismissal of the refusal-to-furnish-information allegations, holding that once an employer establishes the requested information is privileged, the Act does not require disclosure regardless of the union’s need for the information or whether the employer offered an accommodation. The Board reasoned that requiring case-by-case balancing could discourage candid communications with counsel and make voluntary compliance with labor and employment laws more difficult. The decision strengthens protection for privileged workplace investigations, but employers must still establish that the requested materials are privileged. 
    
5. The U.S. Court of Appeals for the Seventh Circuit affirmed the denial of a Board injunction request, holding that generalized harm to union support does not establish irreparable harm. Hamada v. Laborforce, LLC, No. 25-3110 (7th Cir. Sept. 18, 2026). After employees submitted decertification petitions, the employer withdrew union recognition and unilaterally changed wages and benefits, prompting a Board regional director to seek an injunction under 10(j) of the Act requiring the employer to resume recognizing and bargaining with the union pending resolution of the unfair labor practice charges. Applying the Supreme Court’s Starbucks v. McKinney standard, the court rejected the Board’s generalized claims that union support would diminish and employees would lose the collective bargaining benefits without an injunction. It reasoned that such harms arise in many labor disputes and do not establish irreparable harm. The court also considered employees’ statutory right to refrain from union representation and found that the regional director’s delay in seeking relief further weakened the showing of irreparable harm. The decision reflects a developing circuit split with the Second Circuit over what constitutes irreparable harm under Section 10(j). 

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