Recently, the National Labor Relations Board (the “NLRB” or the “Board”) issued two noteworthy decisions, and employers, whether unionized or not, should pay particular attention to the implications these decisions will have on their policies and practices going forward. The decisions, as discussed in detail below, involved provisions within severance agreements that ran afoul of the National Labor Relations Act (“NLRA”) and a presumptively valid, facially neutral no-recording policy.
McLaren Macomb, 372 NLRB No. 58 (Feb. 21, 2023)
On February 21, 2023, the NLRB ruled that overbroad confidentiality and non-disclosure provisions contained within severance agreements, and the mere offering of such agreements with these overbroad provisions, violated Sections 7 and 8 of the NLRA.1 Specifically, the Board determined that overbroad confidentiality and non-disclosure provisions contained within severance agreements were violative of the NLRA when their “terms ha[d] a reasonable tendency to interfere with, restrain, or coerce employees2 in the exercise of their Section 7 rights.”
In McLaren Macomb, 11 bargaining unit employees were furloughed and offered severance agreements containing the following provisions:
Confidentiality Agreement. The Employee acknowledges that the terms of this Agreement are confidential and agrees not to disclose them to any third person, other than spouse, or as necessary to professional advisors for the purposes of obtaining legal counsel or tax...
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