and non-disparagement clauses are legal, except in limited circumstances involving other types of unlawful employer conduct.1 Unfortunately for employers, that declaration has now changed again. In late February of 2023, under the NLRB majority appointed by President Biden, confidentiality and nondisparagement clauses are now illegal, again, unless narrowly tailored to the point where they become far less valuable to employers.2 Later, on March 22, 2023, the NLRB’s top lawyer published additional guidance on this subject.3 The guidance from the NLRB’s General Counsel is far more onerous and declares: • The new standard has “retroactive application.” That means, even if a severance agreement was lawful when signed, it can still be challenged when and if employers try to enforce it. • The new standard does “not depend on the existence of an employment relationship between the [former] employee and the employer.” • Severance agreements can waive an employee’s right to pursue additional employment claims only as to claims arising as of the date of the agreement, and only if they do not have “overly broad provisions” that prohibit conduct protected by the NLRA. • Whether an employee actually signs the agreement is irrelevant. “[The mere] proffer itself inherently coerces employees …” • Confidentiality clauses may still be lawful, but only when “narrowly-tailored to restrict dissemination of proprietary or trade secrets … for periods of time based on legitimate business justifications.” In other words, employers cannot prohibit the publication of the existence or amount of the severance agreement. • Also, “confidentiality clauses that have a chilling effect that precludes employees from assisting others about workplace issues and/or from communicating with the [NLRB], a union, legal forums, the media or other third parties are unlawful.” • Non-disparagement clauses are lawful only where the clause is “narrowly-tailored” to prohibit statements that are “maliciously untrue and made with knowledge of their falsity or with reckless disregard for their truth …” It’s important to recognize that the NLRA does not apply to supervisors. It applies only to rank and file employees. Regardless, this development is very disappointing for employers. The new criteria will diminish the value (and perhaps frequency) of severance agreements. That unfortunately means more controversy and legal disputes. 1 Baylor University Medical Center, 369 NLRB No. 43 (2020); IGT d/b/a International Game Technology, 370 NLRB No. 50 (2020). 2 McLaren Macomb, 372 NLRB No. 58 (February, 2023). 3 Memorandum GC 23-05, Guidance in Response to Inquiries about the McLaren Macomb Decision (March 22, 2023). Mark McQueen’s practice focuses primarily on representing management in the areas of traditional labor relations, human resource counseling and training, employment discrimination, wage and hour, wrongful discharge and interpreting the most complex employment legislation. Mark counsels employers in the labor relations arena from the first signs of union organizing to the successful negotiation of operationally effective collective bargaining agreements. 16 Nebraska Banker
RkJQdWJsaXNoZXIy MTg3NDExNQ==