In the last article, we covered an Iowa Court of Appeals case relating to severance/separation agreements and whistleblower claims. Other issues have cropped up regarding severance agreements and their enforceability but on the federal level. The National Labor Relations Board (NLRB) decided McLaren Macomb and OPEIU, AFL-CIO, relating to the structure and content of severance agreements and their enforceability under the NLRA. Section 7 of the NLRA is enforceable by the NLRB regardless of whether you operate a unionized workplace.
Over the years, the NLRB has taken various positions regarding what activities might “chill” an employee or prior employee’s right to organize, with some directors being very narrow in their interpretation and others extremely expansive. In evaluating whether language and severance agreements “chilled” these rights in 2020, the NLRB (in Baylor and IGT) looked at both the plain language of the agreement and added specific conditions which result in invalidating a severance agreement. This included some form of legal violation such as unlawful termination as well as demonstrating anti-union animus by the employer. These 2020 additions are now removed through the McLaren determination, with the NLRB stating it is going back to a “plain language” determination.
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