Blogs

The National Labor Relations Board’s (NLRB’s) recent decision in McLaren Macomb should have employers reviewing their severance agreements. Even non-union employers can be charged with an unfair labor practice if their agreements restrict employee organizing rights. 

The NLRB reversed decisions handed down in 2020 (Baylor University Medical Center and IGT d/b/a International Game Technology) to revert to a standard held under the Obama administration. The rule now holds that a severance agreement violates the National Labor Relations Act (NLRA) if an employer simply offers agreements with overly restrictive language. This alone can qualify as an unfair labor practice. No longer does the rule require an employer to commit a separate unfair labor practice discriminating against workers or to harbor animus against organizing. 

In a statement after releasing the decision, NLRB Chair Lauren McFerran said, “It’s long been understood by the Board and the courts that employers cannot ask individual employees to choose between receiving benefits and exercising their rights under the National Labor Relations Act.” 

What should an employer do? Review your severance agreements to make sure they specifically do not infringe on organizing rights. If a non-disparagement or confidentiality clause is used with a non-management employee, it should include a savings provision, such as the following: “This non-disparagement provision does not affect or limit your right to engage in protected concerted activity, communicate or file a charge with, or participate in any investigation or proceeding conducted by the NLRB.” Such a disclaimer should be carefully considered. If you would like assistance with your severance agreements, please contact our Member Experience Team.