Q: My last employer asked me to sign a severance agreement, waiving my right to sue, if I wanted to receive my accrued PTO and two weeks’ severance. It was a terrible place to work, with some of the worst managers I’ve ever worked for, but I didn’t think I had been discriminated against or anything that would warrant a lawsuit. So I signed the agreement. After I left, I posted something on Facebook about how happy I was to be free from such a lousy workplace. A lawyer for the firm called me and said I had violated the terms of the agreement by “disparaging” my employer. Is that lawyer correct?
A: According to a recent decision from the National Labor Relations Board, the answer is “Probably No.” Severance agreements that contain non-disparagement clauses may violate workers’ rights under Section 7 of the National Labor Relations Act – whether or not the employees are union members.
Under Section 7 of the Act it is an “unfair labor practice” to “interfere with, restrain, or coerce employees” who are exercising their “right to self-organization … and to engage in other concerted activities for the purpose of … mutual aid or protection.” The Act not only protects the rights of employees to unionize, but also protects speech that refers to the “terms and conditions of employment.”
The severance agreement at issue in the February 21, 2023, NLRB opinion, McLaren v McComb, contained a non-disparagement clause that was viewed as overly broad: “At all times hereafter, the Employee...
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