Many law firms have recently advised employers to review and take steps to comply with the National Labor Relations Board’s February ruling that took issue with severance agreements a Michigan hospital offered to furloughed employees.
In its McClaren Macomb decision, the NLRB determined the severance agreements at issue were unlawful because the confidentiality and non-disparagement provisions would force employees to waive rights under the National Labor Relations Act (NLRA).
But lawyers at Baker McKenzie, one of the largest global law firms, said the implications for employers from the overruling of Trump-era precedent may not be as significant as others have indicated.
“At first blush, this may feel like a sweeping change requiring immediate action,” the attorneys wrote on Baker McKenzie’s Employer Report blog. “However, it is important to consider this decision with a grain (or two) of salt, breathe and thoughtfully plan your next steps.”
The firm’s lawyers suggested one reason the NLRB’s action should be viewed in a less-urgent light is that for most private, nonunion employers “the risk of an unfair labor practice charge is relatively low.”
Even though the National Labor Relations Act applies to most private-sector employers, they said, the NLRB and unions tend to put their focus more on unionized workplaces.
“Given the lower risk for nonunion workplaces, we suspect many employers will take a wait and see approach,” the Baker McKenzie attorneys wrote.
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