In its recent McLaren Macomb decision,1 the National Labor Relations Board (NLRB) issued a ruling finding unlawful the type of nondisparagement and confidentiality provisions employers use in severance agreements with their employees. The NLRB also found unlawful the severance agreements that contain such provisions, and declared that merely proposing (or “proffering”) such severance agreements to employees violated federal labor law. In light of the NLRB’s demonstrated antipathy toward such provisions and the agreements that contain them, employers should carefully review their severance agreements—including those used in the context of reductions in force—as well as other employment-related documents that might contain such potentially offensive provisions (including proprietary information agreements). Given the importance of this issue, employers should consult counsel about making any necessary changes.
The NLRB’s Ruling
In McLaren Macomb, the NLRB held that an employer commits an unfair labor practice under the National Labor Relations Act (NLRA) “when it proffers a severance agreement with provisions that would restrict employees’ exercise of their NLRA rights.” According to the NLRB, such an agreement has “a reasonable tendency to restrain, coerce, or interfere with the exercise of Section 7 rights by employees.” As a result, the mere proffering of such an agreement to employees, it said, is unlawful “regardless of the surrounding circumstances.”2
In McLaren...
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