Even if your business doesn’t have unionized employees, the National Labor Relations Board (NLRB) still has something to say about your policies, your severance agreements, and even your social media rules. In 2025, the NLRB continued its trend of expanding employee rights under the National Labor Relations Act. Non-union employers in Virginia are not exempt from NLRB oversight. Several key rules and decisions from the past few years are reshaping how businesses draft employee handbooks, supervise staff, and respond to organizing activity.

Here are some of those NLRB rules and standards non-union employers need to know as we head into 2026 — and what you can do to stay compliant.

Restored Election “Bar” Rules

The NLRB’s Fair Choice – Employee Voice rule reinstated older standards around blocking charges and voluntary recognition of unions:

• Blocking Charges: If a union files an unfair labor practice (ULP) charge during a union election petition or decertification, the Board may delay or cancel the vote.
• Voluntary Recognition Bar: If an employer voluntarily recognizes a union and provides proper notice, employees may not petition for a decertification vote for at least 45 days.

Compliance Tips:

• Do not enter into recognition agreements with a union casually or without confirming majority employee support.
• If you post a voluntary recognition notice, calendar the 45-day window carefully.
• If a ULP charge arises during an organizing effort, seek counsel immediately — this can affect your right to hold a vote.

Union Recognition Without an Election: The Cemex Standard

Under the NLRB’s August 2023 Cemex decision, if a union presents evidence of majority employee support, the employer must either recognize the union or request an election. If the employer commits even one serious ULP during the campaign, the Board may bypass the election altogether and order union recognition and bargaining.

Compliance Tips:

• Train managers on what constitutes an unfair labor practice (e.g., threats, retaliation, surveillance).
• If faced with a demand for union recognition, respond promptly and consult counsel before taking action.
• Document all union-related communications to demonstrate good-faith compliance if challenged.

Joint-Employer Standard: Status Quo Remains for Now

Although the NLRB issued a broader joint-employer rule in 2023, it was struck down in federal court in 2024. As of now, the NLRB’s narrower 2020 standard remains in effect: two entities are only considered joint employers if one entity possesses and exercises substantial, direct, and immediate control over at least one essential term or condition of another company’s employees. Essential terms and conditions under the 2020 joint employer rule are: wages, benefits, hours of work, hiring, discharge and discipline.

Compliance Tips:

• Review contracts with staffing firms, vendors, and franchisees to avoid reserved or indirect control over their employees’ terms or conditions of employment.
• Avoid dictating scheduling, discipline, or wages for workers not on your payroll.
• Ensure that on-site managers know not to supervise third-party workers unless explicitly required.

Employee Handbook and Policy Enforcement: Stericycle Standard Still Applies

In the Stericycle decision, the NLRB adopted a stricter test for evaluating employer policies. Any work rule that an employee might reasonably interpret as discouraging them from discussing their wages or working conditions is presumed to be unlawful unless the rule is narrowly tailored to a legitimate business interest.

Compliance Tips:

• Audit all employee handbook policies, especially those related to civility, conduct, media, confidentiality, and social media.
• Avoid vague policy language like “always be respectful” or “no negative talk about the company.”
• Include clear disclaimers stating that nothing in the policy is intended to interfere with employees’ rights under federal labor law.

Severance Agreements: Narrow the Language

Following the NLRB’s McLaren Macomb decision, severance agreements that require broad confidentiality or non-disparagement may be deemed to violate employee rights, even if never enforced.

Compliance Tips:

• Remove or narrowly tailor any non-disparagement language or gag clauses in severance agreements.
• Clearly state that employees retain the right to discuss wages, workplace conditions, or legal violations.
• Avoid requiring employees to waive their rights to file complaints with government agencies.

Social Media and Protected Activity

Employees using social media to discuss workplace issues — especially in a group context — are often protected by Section 7 of the NLRA. Overbroad social media policies or device-use rules that ban all workplace recordings or online speech may be illegal.

Compliance Tips:

• Revise employee social media policies to allow protected concerted activity by employees (e.g., wage discussions, complaints about work conditions, etc.).
• Limit no-recording rules to legitimate business interests, like HIPAA compliance or secure areas.
• Train supervisors not to retaliate against employees for protected online posts.

Enforcement Shifts in 2025: What GC Rescissions Mean (and Don’t Mean)

Earlier this year, the NLRB’s Acting General Counsel rescinded several prior memoranda that had taken an aggressive enforcement stance on severance, non-competes, and employer surveillance. While this signals a possible moderation in NLRB prosecutorial priorities, the underlying Board decisions still stand.

Compliance Tips:

• Do not rely on the acting GC’s recission of prior memoranda as a green light to restore old policies.
• Continue complying with established Board decisions (e.g., Stericycle, McLaren, Cemex).
• Monitor ongoing updates — enforcement priorities can shift again if the Board’s composition changes in 2026.

Conclusion: Key Takeaways for Virginia Employers

The NLRB’s reach continues to expand into day-to-day HR issues. Even non-union employers are squarely in the agency’s sights. Now is the time to:

• Audit and revise employee policies and documents to comply with Stericycle, McLaren, and current Board standards.
• Train managers to avoid missteps during union organizing activity under the Cemex framework.
• Review contracts with vendors and staffing agencies for HR services to reduce joint-employer exposure.
• Stay informed on shifting enforcement trends as they emerge in the new year.

Proactive compliance now can help you avoid costly NLRB unfair labor practice charges later. If you have questions about how these rules apply to your business, please contact Doug Taylor at (703) 525-4000 or rdougtaylor@beankinney.com.

This article is for informational purposes only and does not contain or convey legal advice. Consult an attorney. Any views or opinions expressed herein are those of the author and are not necessarily the views of the firm or any client of the firm.