The National Labor Relations Board’s proposed limits on non-disparagement and confidentiality provisions in its recent McLaren Macomb decision that have sparked a renewed focus on these common agreement terms.
Good corporate hygiene supports regular reviews of template employment agreements. In light of this decision, review should also consider which types of employees these provisions cover.
While the National Labor Relations Act applies both to unionized and non-unionized workplaces, the McLaren Macomb decision construed Section 7 of the NLRA, which gives rights only to non-supervisory employees—unless, as the NLRB General Counsel’s Office explained Tuesday, an employer retaliates against a supervisor for objecting to an employer agreement that violates these rules. As a result, it’s now important to understand who counts as a supervisor under the NLRA.
The term “supervisor” is not universally defined despite its application in many employment contexts, including the NLRA. For example, the “supervisor” label helps employers discern who is entitled to receive overtime, who receives the benefits of a multitude of wage and hour laws, and who might be liable for employment claims.
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