Overruling precedent, the National Labor Relations Board (NLRB) recently ruled in McLaren Macomb that an employer violated the National Labor Relations Act (NLRA) by including in a proposed severance agreement standard provisions prohibiting disparagement of the employer and requiring confidentiality of the terms and conditions of the severance agreement. According to the NLRB, "the employer's [mere] offer is in itself an attempt to deter employees from exercising their [NLRA] statutory rights, at a time when employees may feel they must give up their rights in order to get the benefits provided in the agreement."
While the NLRA applies to union and nonunion employees alike, employees are defined to exclude supervisors and managers. Therefore, the case, in and of itself, is not relevant to supervisory, management and executive positions. Nonetheless, employers need to keep in mind that the NLRB likely will continue to construe supervisory positions relatively narrowly, so employers must look at more than an employee's job title to determine if the case applies to a titular supervisor.
More Robust Retained Rights Clauses in Response to Decision
Notably, the severance agreements at issue in McLaren Macomb do not contain a retained rights clause carving out protected activity. That is not the case, or at least should not be, for most employers. However, the carve outs in most existing severance agreements will not be sufficient to meet the broad definition of concerted...
The U.S. Department of Justice (DOJ) recently revised the Justice Manual to reinstate previous agency policy on how it will enforce False Claims Act (FCA) cases moving forward, and when it will see...