Background
In McLaren Macomb, 372 NLRB No. 58 (2023), the National Labor Relations Board (“Board”) overruled two prior decisions and held that an employer violates the National Labor Relations Act (NLRA) “when it proffers a severance agreement with provisions that would restrict employees’ exercise of their NLRA rights,” including agreements containing reasonably standard confidentiality-of-agreement and non-disparagement provisions.
First, understand that the NLRA, and this caselaw, basically applies to all non-supervisory private-sector employees. See, NLRB FAQs. More specifically, the NLRA is not limited in application to employees who are in or seeking to establish a “labor organization.”
Second, understand that “overruling precedent” is somewhat a misnomer. Since the Board is comprised 3-2 of the appointees of the political party holding the presidency, Board law flops back and forth with great regularity.
The Case Decision
McLaren invalidated the language shown in bold, below:
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 advice, or unless legally compelled to do so by a court or administrative agency of competent jurisdiction.
Non-Disclosure. At all times hereafter, the Employee promises and agrees not to disclose information, knowledge or materials of a confidential, privileged, or proprietary nature of which the Employee has or had knowledge of, or involvement with, by reason of the Employee’s employment. At all times hereafter, the Employee agrees not to make statements to Employer’s employees or to the general public which could disparage or harm the image of Employer, its parent and affiliated entities and their officers, directors, employees, agents and representatives.
You’ve used that language in plenty of agreements, right?
What to do? What Won’t Work:
The most direct “accommodation” of this Board decision would of course be to revise the offending language. This is unlikely to be successful. Specifically, a core principle of the NLRA is to protect worker rights to communicate freely about “employment-related” issues, broadly defined, and without explicit or implicit limitation by any policy or act of the employer. This protection is exactly contrary to the purpose of both “confidentiality” and “non-disclosure” (or more usefully, “non-disparagement”) provisions in severance agreements, or for that matter, elsewhere in the employer’s policy statements.
Historically employers have attempted to insulate possibly violative language in employment documents (including handbooks) by including a “No-NLRA Inclusion” disclaimer. Such as, “Nothing in this Handbook in any way restricts, limits, or infringes upon any right of any employee under the National Labor Relations Act.” The problem here is, the Board has rigorous standards for what might be a sufficient disclaimer, and the foregoing isn’t close.
Prior Board caselaw has commented on what type of non-disparagement language might pass muster. Here’s what the Board has had to say about that: The employer may permissibly impose a prior restraint rule on worker statements that demonstrate “sharp, public, disparaging attacks upon the quality of the company’s product and its business policies, in a manner reasonably calculated to harm the company’s reputation and reduce its income.” Such a rule is not likely to be satisfactory in most cases – if anything, it informs angry workers where the line of permissible misconduct is drawn and suggests disparagement of employer and product.
These principles do highlight one important provision: a “severability” clause. McLaren does not discuss the possibility that inclusion of unlawful provisions could be the basis of an invalidation of an entire severance agreement. But it’s not an unrealistic concern. Include a satisfactory severance provision that protects the overall purpose of the agreement.
What Else to do?
The informed employer is faced with a dilemma: implement severance language that risks running afoul of Board precedent or do without reasonably typical restrictions on disclosure or discussion of severance agreement terms. Unfortunately, the “safe harbor” likely requires seriously limited or unhelpful confidentiality and non-disparagement provisions.
The typical “remedy” for a violation of this nature, and the remedy awarded in McLaren, is to “cease and desist” from proffering unlawful language in future severance agreements and post a notice of the immediate violation in prominent places in the employer’s facility. Now that the new “rule” is announced, however, future remedies could include (a) rescission of the offending agreements; (b) notification of other employees who signed unlawful agreements (subject to the statutory 6-month limitations period) and other remedial orders.
This alert serves as a general summary and does not constitute legal guidance. Please contact us with any specific questions.
Fraser Trebilcock Shareholder Dave Houston has over 40 years of experience representing employers in planning, counseling, and litigating virtually all employment claims and disputes including labor relations (NLRB and MERC), wage and overtime, and employment discrimination, and negotiation of union contracts. He has authored numerous publications regarding employment issues. You can reach him at 517.377.0855 or dhouston@fraserlawfirm.com.