On February 21, 2023, the National Labor Relations Board (“NLRB” or the “Board”) issued a decision in McLaren Macomb, 372 NLRB No. 58 (2023), regarding the enforceability of confidentiality and non-disparagement provisions in severance agreements for non-supervisory employees, irrespective of union status. The Board ruled that an employer violates Section 8(a)(1) of the National Labor Relations Act (“NLRA”) by offering a severance agreement to employees that includes confidentiality and non-disparagement terms restricting the exercise of the employees’ NLRA rights. On March 22, 2023, NLRB General Counsel (“GC”) Jennifer Abruzzo issued a non-binding memorandum[1] expressing her position on the scope and application of the McLaren Macomb decision, including that it applies retroactively to severance agreements already in effect. In light of this ruling and the GC’s memorandum, employers should carefully consider whether changes may be required to their severance agreements.
Impacted Severance Agreements
The Board’s decision impacts severance agreements offered to both unionized and non-unionized employees who do not hold supervisory roles.[2] Under the NLRA, “supervisors” are those employees who exercise authority over other workers, using “independent judgment.”[3] To “exercise authority” under the NLRA is, by way of example, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, discipline, or direct other employees.[4]
2 replies (most recent on top)
The NLRA
"Rules Restricting Advocacy, Argument and Debate among Employees
The Act protects the right of employees (and non employees) to argue and debate with one another about unions, management, and workplace conditions. As the General Counsel explained, these discussions can become “contentious,” but they do not lose the protection of the Act even if they include debate tactics that are “intemperate, abusive and inaccurate.” As a result, prohibitions on “negative” or “inappropriate” discussions, or prohibitions on harassment of coworkers as a general matter, are considered unlawful by the GC.
- A rule stating “don’t pick fights” online is unlawful because employees could construe it to restrict “protected discussions with their coworkers.”
- A rule prohibiting making “insulting, embarrassing, hurtful or abusive comments about other employees” is unlawful because “debate about unionization (and workplace conditions)...is often contentious and controversial” and the rule could be viewed as “limiting [employees’] ability to honestly discuss such subjects.”
- A rule requiring employees to “show proper consideration for others’ privacy and for topics that may be considered objectionable or inflammatory” was unlawful because protected “discussion of unionization ... can be an inflammatory topic.”
What’s the point of this? Everyone that was laid off signed the non disparage non disclose agreement in order to receive the package. If someone violates it, and the MOA goons come after them, they would still need to pay a lawyer to fight them off. What would be the point of risking a lawsuit?