Last month, the National Labor Relations Board (“NLRB”) issued a decision in McLaren Macomb (“McLaren”), holding that the mere offer of a severance agreement with broad confidentiality and non-disparagement provisions violated the National Labor Relations Act. We previously published a news article on McLaren which you can read for a summary of the decision.
Guidance Memo to Clarify Unanswered Questions
McLaren left many questions unanswered. Employers have not received further clarity from the NLRB on how the decision will retroactively and prospectively impact confidentiality and non-disparagement restrictions and how the decision will play out in practice.
However, there is good news – General Counsel Jennifer Abruzzo plans to release a guidance memo that will elaborate the NLRB’s decision this week.
What Will the NLRB Clarify?
While there is no certainty on what the NLRB will clarify, we expect that they will provide clarification on the following:
- Will the decision be retroactive?
- What is the standard for evaluating whether an agreement is overly broad?
- If the agreement is overly broad, will the overbroad language simply be struck out or will the agreement be void in its entirety?
- Does the decision apply to severance agreements with departing employees?
- Does the decision impact post-employment restrictions on confidentiality or trade secret information?
MNK Law will continue to monitor developments with respect to the McLaren decision and the NLRB’s guidance memo of the same. For more information on confidentiality, non-disparagement, and other provisions in severance agreements, please contact us at firstname.lastname@example.org.
This material is provided for informational purposes only. It is not intended to constitute legal advice, nor does it create a client-lawyer relationship between MNK Law and any recipient. Recipients should consult with counsel before taking any actions based on the information contained within this material.