The National Labor Relations Board (“NLRB”) recently issued a decision limiting the use of confidentiality and non-disparagement provisions in severance/separation agreements.  Specifically, the NLRB’s decision in the matter McLaren Macomb as well as recent guidance issued by the NLRB’s general counsel confirms that employers must be sure to limit confidentiality and non-disparagement provisions so that they clearly do not infringe on certain protected activities.  Examples of limitations demanded by the NLRB include language making clear that discussing terms and conditions of employment with former coworkers and engaging in communications related to ongoing labor disputes would not violate confidentiality and non-disparagement provisions.  However, it should be noted that the NLRB’s guidance is vague and the ultimate outcome of this decision is less than clear.

Additionally, the NLRB’s general counsel has taken the position that any separation/severance agreement issued in the last six months that does not meet its requirements (essentially every separation/severance agreement) are in violation of its recent ruling.  That being said, any such agreement issued by our office always contains a provision noting that the terms of the agreement are severable, so that the entire agreement is not void if one provision is deemed to be unlawful.

The NLRB has also suggested that employers contact any former employees who have received a separation/severance agreement issued in the last six months and advise them that the offending provisions will not be enforced.