Top Five Labor Law Developments for January 2026

1. Now that the National Labor Relations Board has regained a quorum, the Board is expected to pursue a more employer-friendly agenda. Changes that employers can anticipate include narrowing standards for protected concerted activity, limiting or eliminating the “consequential damages” remedy, and allowing greater flexibility in work rules, handbook policies, and union insignia restrictions. Because the Board (which currently has two Republicans and one Democrat) traditionally does not overturn precedent without three votes in the majority, it is unlikely to do so in its present form, but it can make changes through the rulemaking process. Through rulemaking, or an eventual 3-1 majority, the Board is also likely to revisit Biden-era precedents, including forced union recognition based on authorization cards, the independent contractor standard, and restrictions on mandatory captive-audience meetings. The Board’s anticipated direction may emphasize procedural clarity and a return to more traditional precedent.
    
2. Board data indicated a substantial decrease in union organizing during 2025 after several years of post-pandemic growth, Bloomberg Law reported. The number of union representation elections dropped to roughly 1,400, down from nearly 2,000 the year before, and unionizing success rates declined sharply. Consequently, the number of workers newly organized through Board elections fell by close to 40 percent from 2024 to 2025, marking the first notable slowdown since 2020. Bloomberg Law attributes the drop to a combination of economic uncertainty, a cooling labor market, and diminished institutional support caused by Board instability and budget limits. 
    
3. In an advice memorandum, the Board’s Division of Advice concluded that a newspaper employer lawfully terminated an employee who used the employer’s internal messaging system to criticize editorial decisions and demand greater control over news content. The Division found that, while employees may raise issues related to working conditions, demands that infringe on a newspaper’s editorial discretion are unprotected because editorial control is constitutionally protected under the First Amendment. The memorandum relied on U.S. Court of Appeals for the D.C. Circuit precedent holding that decisions about what to publish are not a legitimate subject of Section 7 protection under the National Labor Relations Act. The Division also determined that the employer’s revised internal messaging channel rules (which limited the purpose of the channel) were lawful under the Board’s 2023 Stericycle decision, because employees economically dependent on their employer would not reasonably interpret them as restricting protected concerted activity. 
    
4. Newly appointed Board General Counsel (GC) Crystal Carey issued her first memo outlining operational priorities focused on achieving consistent, fair, and timely case resolution across Board regions. Memorandum GC 26-02. Departing from prior practice, GC Carey declined to issue an initial “Mandatory Submissions to Advice” memo identifying specific issues for potential Board reconsideration, instructing regions instead to follow the standard advice submission-framework. The memo emphasizes that the agency’s primary goal is to address a significant case backlog rather than pursue efforts aimed at overturning precedent or expanding enforcement theories. GC Carey attributes the backlog to recent years of shifting priorities, impediments to settlements, and inconsistent case processing across regions. The memo signals a renewed focus on operational guidance, including case processing, settlements, and remedies to promote efficiency and prompt resolution of matters.
    
5. The D.C. Circuit declined to rehear former Board Member Gwynne Wilcox’s challenge to her removal. Wilcox v. Trump, et al., No. 25-5057 (D.C. Cir. Jan. 28, 2026). The decision means the court’s prior panel decision upholding President Donald Trump’s authority to fire Wilcox stands. The court reaffirmed that the statutory protections afforded to members of independent agencies like the Board do not prevent presidential removal, relying on the previous panel ruling that questioned the applicability of 1935’s Humphrey’s Executor decision. Former Member Wilcox argued that the decision threatens the independence of a wide range of federal agencies whose officials are insulated from direct presidential control, but the court rejected that concern. The U.S. Supreme Court is expected to resolve the issue and the scope of Presidential removal power.
    

Please contact an attorney at Jackson Lewis if you have any questions about these developments.