Nlrb Doubles Back Severance Agreements Cannot Require Employees To In making its decision, the nlrb found that severance agreements with confidentiality or non disparagement provisions inherently interfere with employees’ nlra rights. Today, the board issued a decision in mclaren macomb, returning to longstanding precedent holding that employers may not offer employees severance agreements that require employees to broadly waive their rights under the national labor relations act.
Nlrb Doubles Back Severance Agreements Cannot Require Employees To As part of the trump administration’s significant efforts to roll back the biden administration’s policies, the acting general counsel of the national labor relations board (the “nlrb”) recently rescinded, via memorandum gc 25 05, more than 30 biden administration memoranda. Today, the board issued a decision in mclaren macomb, returning to longstanding precedent holding that employers may not offer employees severance agreements that require employees to broadly waive their rights under the national labor relations act. The memo says the decision in mclaren macomb has retroactive effect and cites confidentiality, non disclosure, and non disparagement clauses as examples of provisions in severance agreements that violate the mclaren macomb standard. On february 21, 2023, the nlrb issued its decision in mclaren macomb, 372 nlrb no. 58, reinstituting its pre 2020 precedent that severance agreements cannot contain: (1) confidentiality agreements precluding the employee from discussing the terms of the severance; and (2) non disparagement clauses.
Severance Agreements Cannot Force Employees To Waive Nlra Rights The memo says the decision in mclaren macomb has retroactive effect and cites confidentiality, non disclosure, and non disparagement clauses as examples of provisions in severance agreements that violate the mclaren macomb standard. On february 21, 2023, the nlrb issued its decision in mclaren macomb, 372 nlrb no. 58, reinstituting its pre 2020 precedent that severance agreements cannot contain: (1) confidentiality agreements precluding the employee from discussing the terms of the severance; and (2) non disparagement clauses. In applying the jefferson standard test to severance agreements, employees may only be barred from making communications that are disloyal, reckless, or maliciously untrue after termination of the employment relationship. Employers should be mindful that it may need to take different approaches with different categories of employees. the ruling is part of a greater board trend extending pro employee protections. for instance, in december 2022, the board issued a series of decisions overturning trump era precedent. The 3 1 decision overruled the nlrb’s decisions in baylor university medical center and igt d b a international game technology from 2020, which broke from prior precedent and held that offering similar severance agreements to employees was not unlawful. While such a provision may seem standard to many employers, the board majority held that precluding employees from disclosing terms of the severance agreement — including those that may be unlawful — violated employees’ section 7 rights to assist coworkers and the nlrb.
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