There is lots of buzz lately about a broad sweeping decision by the NLRB that limits the use of Confidentiality and Non-Disparagement provisions in severance agreements. Fox experts Andrew MacDonald and Bob Nagle wrote all about it in this Alert.
It sometimes helps to put the NLRA in context, especially in a state like California that already has a lot of worker protection laws.
First, as Andrew and Bob explain, the NLRA applies to all workforces, not just unionized workforces. That simple fact surprises many. For example, a non-union employer can be hit with an unfair labor practice charge. Especially if that business is a target of union organizers.
Second, the NLRA does not apply to supervisors, managers, and a few other categories of employees specifically exempted (such as government employees and agricultural laborers).
Given those limitations, when the NLRB issues a decision (like the recent decision about severance agreements), for most employers, it only impacts their non-exempt workforce. That means that any updates to severance agreements, to scale back what could be viewed as overbroad Confidentiality and Non-Disparagement provisions (which are notoriously hard to enforce for line level workers anyway, and are often in those agreements for their chilling effect), could be limited to non-supervisory workers.
Another consideration for California employers is the upswing in union activity in our state, especially in the Bay Area and Los Angeles, where unions...
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