NLRB reshapes labor law

In a series of recent rulings, the National Labor Relations Board (NLRB) is imposing its vision of the law on workplaces, union and nonunion alike. By basing its decisions on the broad workers’ rights language in the National Labor Relations Act (NLRA), the Board is issuing judgements that will affect every business.

Severance agreements remade
In its McLaren Macomb decision, the NLRB essentially deemed it an unfair labor practice even to proffer a severance agreement that contained nondisparagement and confidentiality clauses. The rationale for this conclusion is that nondisparagement and confidentiality provisions unlawfully restrain and coerce departing employees in the exercise of their protected rights. As such, this applies to all covered workers, regardless of union membership.

This broad-brush ruling has created considerable consternation among employers, largely because the Board provided no practical guidance in how to apply the decision. Are trade secrets protectable? Price lists? Customer lists? Business plans? Can personal attacks be barred? Investigation testimony protected? Can an explicit clause preserving the terminated employee’s rights suffice to avoid legal sanctions? The Board has yet to provide any detailed counsel on the limits of its decision.

The Board’s ruling applies to statutory “employees,” not to supervisors, managers, or executives. Further, it “only” covers rights protected by the NLRA, which means a release of discrimination and other claims, for example, could still be included in a severance agreement.