New NLRB Guidance for Severance Agreement Non-Disparagement Provisions

New guidance from the National Labor Relations Board (NLRB) is helping employees to understand the limits of non-disparagement clauses in severance agreements. According to a memo to NLRB field offices, lawful severance agreements are still permitted, as long as they do not contain overly broad provisions that affect employee rights to engage with one another to improve their working conditions. 

As noted in the recent McLaren Macomb decision, the Board reaffirmed longstanding precedent that employers violate the National Labor Relations Act (NLRA) when they require employees to waive their rights under the Act as a condition of receiving severance agreements.

The NLRB’s position is that non-disparagement provisions may still be enforceable if they do not prevent the rights of workers to organize.

Non-disparagement provisions have long been a standard feature of severance and separation agreements. You should consult with an attorney before engaging in a potentially disparaging activity. Potomac Legal Group is experienced in reviewing agreements and counseling employees on their obligations. Contact us for a consultation should you have questions or concerns.

The memo aims to assist NLRB offices in responding to inquiries from workers, employers, labor organizations, and the public about the implications of the case. It offers guidance on various aspects of the decision, such as its retroactive effect and its application to future severance agreements.

In the memo, the NLRB’s general counsel makes clear that employees cannot waive their future rights under Section 7 of the NLRA, which includes the right to engage in protected concerted activities. Waivers that preclude future exercise of these rights are not permitted. 

If you have any questions about the NLRB’s guidance or your rights under the NLRA, contact Potomac Legal Group to review your matter.

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