NLRB bans non-disparagement and confidentiality mandates in severance agreements
ohioemployerlawblog.com
ohioemployerlawblog.com
A few thoughts and takeaways.
1.) This case only applies to employees that the NLRA covers. In other words, it does not apply to anyone classified as a "supervisor" under Section 2(11) the Act. For these employees, keep your severance agreements as-is; this case does not impact them at all.
2.) McLaren Macomb is prospective only. It will have no impact on severance agreements previously signed.
3.) This decision makes very little sense. By the very nature of a severance agreement, you are giving a former employee something to which they are not entitled (additional money) in exchange for a signed agreement that contains certain covenants. The ex-employee is free to take the severance payment in exchange for the signed agreement (including the confidentiality and non-disparagement clauses) or not take the severance payment (and say whatever they want to whom). As these non-disparagement and confidentiality clauses are a condition of the receipt of a severance payment to which a non-employee is not otherwise entitled, I fail to see how the NLRA is implicated at all.
> Public statements by employees about the workplace are central to the exercise of employee rights under the Act.… [T]he comprehensive ban would encompass employee conduct regarding any labor issue, dispute, or term and condition of employment of the Respondent.… [E]mployee critique of employer policy pursuant to the clear right under the Act to publicize labor disputes is subject only to the requirement that employees' communications not be so "disloyal, reckless or maliciously untrue as to lose the Act's protection.
In other words, I think it's because these discussions could be said to be part of collective bargaining: the text of these sorts of agreements is something that, at the very least, your union (or coworkers who're interested in forming one) would want to know about, right?
My (uninformed) guess is that the Court of Appeals would rule along the lines of "the NLRB can regulate away banning these clauses from applying to discussions with coworkers and union representatives, but not the general public," since banning them in general could be considered as acting outside their regulatory mandate.
Also SCOTUS will probably knock all of this down in the future in the name of contract/property rights