On March 22, 2023, the National Labor Relations Board’s (“NLRB”) General Counsel Jennifer Abruzzo issued Memorandum GC 23-05 (the “Memo”), which provides additional guidance on the recent NLRB decision in McLaren Macomb, 372 NLRB No. 58 (2023).
As we recently reported, McLaren held that employers violate the National Labor Relations Act (“NLRA”) when they merely offer non-supervisory/management employees, both union and non-union, severance agreements that contain overly broad confidentiality and/or non-disparagement provisions.
The Memo, which was issued to “assist Regions [of NLRB offices] in responding to inquiries from workers, employers, labor organizations and the public about implications stemming from that case,” responds to some common inquiries regarding the impact of the McLaren decision. Among other things, the Memo makes clear the following:
- Severance agreements are not banned outright.
- Whether or not the employee actually signed the severance agreement is irrelevant for purposes of finding a violation under the Act since the proffer itself is inherently coercive.
- While supervisors generally are not protected by the NLRA, it would be violative for an employer to retaliate against a supervisor who refuses to proffer to an employee an unlawful separation agreement.
- McLaren applies retroactively to agreements proffered before February 21, 2023.
- Agreements generally should not be found to be void in their entirety because they include unlawful provisions, even if the agreement does not include a severability clause.
- Disclaimer language regarding rights afforded under the NLRA in the agreement may not necessarily cure overly broad provisions.
- Confidentiality and non-disparagement provisions that are narrowly tailored may be found lawful.
While the Memo provides Abruzzo’s opinion on many frequently asked questions, others remain. Employers should review the Memo, found here, in order to educate themselves on how the NLRB is going to apply and interpret McLaren going forward (in the absence of an appeal and further direction from the courts, which may be yet to come).
