A Day in the (Work) Life

The National Labor Relations Board (NLRB) General Counsel Asks NLRB to Set Aside Two Biden-Era Standards. The NLRB General Counsel (GC) has asked the board to overturn two workplace-rules standards in connection with a pending dress-code case. The GC requested that the board set aside its 2022 Tesla Inc. decision and its 2023 Stericycle decision, both of which established worker-friendly frameworks for evaluating the lawfulness of employer workplace rules. The GC argued that the board’s 2022 Tesla decision improperly elevated employee expression to a near-absolute right in the dress and insignia context, failing to adequately balance legitimate employer interests. Similarly, the office contended that the board’s 2023 Stericycle standard—under which rules violate the National Labor Relations Act (NLRA) if workers could reasonably interpret them as restricting labor activity—does not sufficiently account for employers’ interests in maintaining order, complying with legal requirements, and fostering productive environments. As a replacement for Tesla, the GC urged the board to reinstate the standard from its 2019 Wal-Mart Stores Inc. ruling, which held that employers may maintain neutral, nondiscriminatory uniform and appearance rules absent proof of disparate treatment or unreasonable restriction. The GC characterized the Tesla framework as rendering virtually every employer dress code presumptively unlawful, inviting ambiguity and litigation risk that warrants overruling the decision.


EEOC Amicus Program Targets Harassment Claims. In 2026, the Equal Employment Opportunity Commission (EEOC) has resumed its amicus brief program after a yearlong hiatus, filing nearly a dozen briefs that reveal several key enforcement priorities. The commission’s briefs have focused primarily on employer liability in third-party harassment cases and on clarifying the scope of the Supreme Court’s 2024 Muldrow decision, which lowered the threshold for employees to advance workplace discrimination claims. Five of the eleven briefs filed since January involve sex harassment claims against female workers, with two specifically addressing situations where the harasser was a nonemployee; in those cases, the EEOC has advocated for a negligence standard under which an employer is liable if it knew or should have known of the harassment and failed to take corrective action. On Muldrow, the EEOC has urged circuits to apply the ruling broadly, arguing that plaintiffs need only show “some harm”—not “significant” harm—and that even intangible consequences of workplace decisions can satisfy this standard. The agency has also weighed in on the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, arguing that the law applies to Title VII harassment claims even when the underlying conduct is not sexual in nature. Several briefs addressed foundational hostile work environment standards, correcting courts that misstated the Harris v. Forklift Systems test—which requires conduct to be “severe or pervasive,” not “pervasive and regular” or “severe and pervasive.” The amicus program had been stalled throughout 2025 because the agency lacked the quorum needed to approve new filings, but it was restored with a new appointee in October 2025 and has been active since January 2026. 


NLRB’s Division of Advice Weighs In on Restrictive Covenants. The NLRB’s Division of Advice released a memo concluding that noncompete provisions in employment agreements do not generally violate employees’ rights under federal labor law. The memo recommended dismissing charges against a medical technology company, which had required employees to sign agreements barring them from working for competitors for six months after leaving, finding no violation of the NLRA under current board precedent. The memo also concluded that the company’s confidentiality clause did not violate the NLRA, reasoning that employees would understand it to restrict sharing information only with competitors, not with fellow employees in a way that would implicate Section 7 organizing rights. While the Division of Advice noted that the company’s non-disparagement clause was “arguably unlawful,” it recommended against pursuing charges because the company never enforced that provision against the workers. The Division of Advice further recommended dismissing claims that a state court lawsuit and related arbitration the company filed against the departing employees violated the NLRA, finding no evidence of retaliatory motive and noting that noncompete enforcement is lawful under current board precedent. A second memo recommended dismissing a charge against another company over a separation agreement that barred a laid-off employee from soliciting the company’s clients or employees, finding the restrictions lawful because they applied only after the employment relationship ended.


Random Beatles Fact: The album “Abbey Road” originally had the working title “Everest.” The Beatles even kicked around the idea of having the album cover be a picture of them in the Himalayas. Ultimately, the band decided it would have been too much of a logistical hassle. Therefore, Paul McCartney suggested naming the album “Abbey Road”—the name of the street where the recording studio was located. The album cover features a man standing in the background with his hands on his hips, looking at The Beatles. That person was an American tourist, Paul Cole, who was not part of the photo shoot. Instead, he was tired of visiting museums; therefore, he waited outside while his wife visited a museum. While outside, he stated he noticed a “bunch of kooks” walking across the street like a line of ducks, with one guy barefoot. Today, more than 1,000 people a day visit the famed zebra crossing. 

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