Wednesday, March 29, 2023

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.
That's, uhhh, a lot. Keep an eye out for that model language, but I think it's going to be something like the above. 

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