In an unsurprising move, the National Labor Relations Board (NLRB) has reinstated its prior precedent that employers may not offer non-management employees severance agreements that prohibit employees from making disparaging remarks about the company or disclosing the terms of the agreement.
The NLRB's recent decision in McLaren Macomb has rendered unlawful the offering of severance agreements that "broadly require" the employee to whom it was proffered "to waive certain Section 7 [of the National Labor Relation Act] rights." Critically, an agreement may be found to be unlawful upon the offer of the agreement (prior to execution) and irrespective of whether the employer engages in any actions to enforce such an agreement.
By way of general background, Section 7 of the National Labor Relations Act (NLRA) guarantees employees the right to organize, bargain collectively or other concerted activities for their mutual aid or protection as well as the right to refrain from such activities. Section 8 of the NLRA prohibits employers from interfering, restraining or coercing employees from exercising their Section 7 rights. Notably, Section 7 covers most private sector employees but generally does not cover government employees, agricultural laborers, independent contractors and supervisors.
In McLaren Macomb, the Board examined the non-disparagement and...
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