NLRB GC weighs in on nondisparagement and confidentiality clause decision

NLRB General Counsel, Jennifer Abruzzo, issued a memorandum addressing the NLRB's decision in McLaren Macomb (memo | press release | McLaren decision). You can read my analysis of that decision here: NLRB takes aim at confidentiality and nondisparagement clauses in separation agreements.

The whole memo is worth a read, but some highlights of the GC's view:

Even unsigned agreements violate the NLRA if they were proffered and include unlawful nondisparagement and confidentiality provisions;
The decision applies retroactively to separation agreements entered into even before the NLRB's decision in McLaren;
In a rare piece of good news, agreements with unlawful clauses are likely still enforceable as to the remaining lawful provisions;
The memo is less than clear as to whether a "savings clause" would work. It seems like it could work, but the GC would like the NLRB to adopt a model.

On that last point, what might a model savings clause look like? Well, the memo states that a savings clause should:

make it clear to employees that they had rights to engage in:

(1) organizing a union to negotiate with their employer concerning their wages, hours, and other terms and conditions of employment;

(2) forming, joining, or assisting a union, such as by sharing employee contact information;

Not official use.
(3) talking about or soliciting for a union during non-work time, such as before or after work or during break times, or distributing union literature during non-work time, in nonwork areas, such as parking lots or break rooms;

(4) discussing wages and other working conditions with co-workers or a union;

(5) taking action with one or more co-workers to improve working conditions by, among other means, raising work-related complaints directly with the employer or with a government agency, or seeking help from a union;

(6) striking and picketing, depending on its purpose and means;

(7) taking photographs or other recordings in the workplace, together with co-workers, to document or improve working conditions, except where an overriding employer interest is present;

(8) wearing union hats, buttons, t-shirts, and pins in the workplace, except under special circumstances; and

(9) choosing not to engage in any of these activities.