NLRB GC Memo 26-04: Keep Severance and Handbook Language Compliant

Your severance template and handbook rules are still governed by current NLRB precedent, not by what the General Counsel says it wants changed. A memo can change which cases the agency pursues; it does not, by itself, change the rule your documents must satisfy.

Crystal S. Carey, the NLRB General Counsel, issued Memorandum GC 26-04 on August 26, 2026. The General Counsel has already asked, or intends to ask, the Board to revisit thirteen Biden-era decisions. After three Trump-appointed members were confirmed and seated, the NLRB had a 3-1 Republican majority. That combination makes the memo worth reading. It does not make the memo a legal safe harbor.

A prosecution roadmap is not a safe harbor

GC Memo 26-04 did not alter NLRB law; it was only a guide to precedents the General Counsel wanted changed. The two-step compliance rule is: do not treat the memo as a safe harbor, and keep current severance and handbook language compliant until an actual Board ruling changes the rule.

The office that chooses cases does not set the legal standard. The tribunal does. A memo can make a particular theory more likely to be tested, but it does not make an overbroad clause lawful. When the General Counsel asks the Board to revisit a decision, the old decision remains the rule until the Board says otherwise. That distinction matters most when you are editing a template that will be used soon, not in a hypothetical future case.

Do not treat the memo as permission to broaden a clause. A change in prosecution posture can make enforcement less likely in some areas, but it does not erase the current rule. If a clause is overbroad today, the memo does not cure it; keep the clause narrow, document why it is narrow, and keep the note with the template.

Current severance precedent still controls your templates

The NLRB's 2023 McLaren Macomb decision, 372 NLRB No. 58, treated expansive confidentiality and non-disparagement clauses in severance agreements as presumptively invalid. That is the clause-level rule to apply when you review a separation package. A broad promise of silence can be the problem. A narrow, tailored clause that preserves protected rights is the safer drafting posture.

When you review a severance template, look for three things: confidentiality language that covers only information the employer has a legitimate interest in protecting, non-disparagement language that is mutual and limited, and an express reservation of protected concerted activity. If any of those is missing, the clause needs a rewrite, not a memo-based exception. A clause that bars all statements about the employer, the separation, or the workplace invites a challenge. A clause that protects only a narrow business interest is easier to defend.

Handbook rule sections follow the same test. A rule that tells employees they may not discuss pay, working conditions, or union activity is the high-risk area. A rule that protects confidential business information is different. If your handbook uses broad language to keep disputes internal, read it as if a manager will have to enforce it in practice. The rule should be specific enough to survive a close look.

Watch the NLRB, not the memo, for real change

The Ninth Circuit enforced the NLRB's Cemex decision in 2026. That reminder matters because a ruling can be enforced while the agency's posture shifts and the underlying precedent remains. Your document watchlist should track actual rulings, not only statements about what the General Counsel wants changed.

Keep the watchlist narrow. It should include the date of the last review, the owner, and the event that will start the next review: an NLRB ruling that changes the rule, a court enforcement of a ruling, or a template reuse. A short table is enough. It needs a date, a source, a clause affected, and a next action.

Organizing-response scripts deserve the same treatment. Scripts that tell managers to keep union activity internal can become evidence in a dispute. Scripts that tell managers to follow lawful policy, avoid threats, and escalate questions to counsel are safer. If your script was written to sound firm, check whether it is actually lawful before you use it.

Run this checklist before you reuse a template

• Confirm your severance template uses narrow confidentiality and non-disparagement language that does not reach protected activity.
• Check handbook rules for broad no-dispute, no-communication, or no-social-media terms that could cover protected concerted activity.
• Verify organizing-response scripts do not tell employees they must stay silent about wages, hours, or union activity.
• Keep a dated log of every agency decision, memo, and court enforcement that affects your templates.
• Assign one owner to re-run this check after each actual agency ruling, not after each agency statement.

Put the next check on the calendar now, and tie it to the next actual NLRB ruling, not the next memo.