We will likely see a mountain of changes (or at a minium, activity) on the labor law front in 2026 given the National Labor Relations Board (NLRB or Board) finally has a quorum and confirmed General Counsel. 

Given that the agency is primed to start issuing decisions again, there are a host of issues companies can expect this Board to have a different perspective on than its predecessor. Here are the top three that I'm watching:

1. Cemex Will Likely Be Overturned

For decades, if a union demanded recognition based on signed union authorization cards, an employer could simply decline recognition, and the union would be required to file an election petition with the NLRB requesting an election. Only if the union won the election and was certified as bargaining representative would the employer be obligated to bargain with the union. The Board's Cemex ruling in 2023 drastically altered this framework and created a system that puts the onus on an employer faced with a “demand for recognition” purportedly supported by a majority of employees to file its own petition with the NLRB, and failure to do so can result in automatic recognition. 

Perhaps even more significant, the NLRB held in that case that if an employer commits any unfair labor practices of significance during a union campaign (such as interrogation of employees, for example), then as a penalty the agency can force the company to recognize the union — even if a majority of employees voted against unionization. 

In short, the Cemex ruling made it significantly easier for unions on multiple fronts to come in and get representational rights over a workforce. This was arguably the most significant departure from decades-old precedent issued by the prior NLRB (and created a lot of anxiety in the business community), so I anticipate Cemex to be at the top of the list for cases to be revisited.

2. A Broader Standard for Waivers in Labor Agreements Should Return

Prior to the last Board coming online, the NLRB adopted the “contract coverage” test to determine whether a union waived its right to bargain over certain management decisions in the 2019 case MV Transportation. Under MV Transportation, the employer did not have to bargain with the union over management decisions that came “‘within the compass or scope’ of contract language granting the [employer] the right to” implement certain changes. 

The last Board changed course in its 2024 Endurance Environmental Solutions, LLC decision, however, ruling that it will require a union’s waiver to be “clear and unmistakable.” This standard imposes hardships on employers attempting to make management decisions pursuant to, for example, a management rights clause. I believe it's likely we see a return to the contract coverage standard in the near future.

3. Standard Personnel Policies Will Come Under Less Scrutiny 

In 2023, the NLRB issued its Stericycle Inc. decision that subjects employer handbooks and policies to a much higher level of scrutiny than what we saw in the years immediately prior. Indeed, since Stericycle, employer policies that previously seemed routine or standard may now be considered violations of the National Labor Relations Act. 

Under the standard set forth in that case, the Board evaluates employer policies and rules to determine whether an employee could “reasonably interpret the rule” to restrict employees from freely taking collective action with their coworkers pursuant. If the NLRB demonstrates that an employee is reasonably likely to interpret a company rule to have a chilling effect on their labor law rights, then the rule will be presumptively unlawful, even if a “non-coercive” interpretation is also reasonable. 

Under the holding in Stericyle, the agency invalidated numerous categories of policies, such as uniform policies, cell phone policies, respectful workplace policies, and more. I expect this line of cases to be revisited and a new framework that accounts for the actual intent behind the policy at issue to come into play.

Rest assured, there are many more issues out there likely to be reviewed, but those are my top three to watch. Stay tuned to the blog for all the key labor law developments in 2026 and beyond.