On February 21, 2023, the NLRB issued its opinion in McLaren Macomb and corresponding press release, Board Rules that Employers May Not Offer Severance Agreements Requiring Employees to Broadly Waive Labor Law Rights.
The case involved the following provisions in separation agreements offered to 11 permanently furloughed bargaining unit employees:
6. 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.7. Non-Disclosure. At all times hereafter, the Employee promises and agrees not to disclose in- formation, 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.
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Not official use. |
nondisparagement provisions that you'd find it just about any separation agreement? Yes, those.
[T]he nondisparagement and confidentiality provisions interfere with, restrain, or coerce employees’ exercise of Section 7 rights. Because the agreement conditioned the receipt of severance benefits on the employees’ acceptance of those unlawful provi- sions, we find that the Respondent’s proffer of the agreement to employees violated Section 8(a)(1) of the Act.