NELA Briefing: McLaren Macomb

Did The Biden Administration Ban Confidentiality Clauses
and Non-Disparagement Agreements?

NELA Briefing on the NLRB’s McLaren Macomb Decision

The National Labor Relations Board (“NLRB”) recently issued a decision in McLaren Macomb holding that non-disparagement and confidentiality clauses in a severance agreement are unlawful when they have a reasonable tendency to interfere with, restrain, or coerce the exercise of employee rights under Section 7 of the National Labor Relations Act (“NLRA”).

From the U.S. Securities and Exchange Commission’s $35 Million fine in the Activision case requiring severance agreements to allow whistleblowers to communicate with the government to the Speak Out Act of 2022, unfair non-disparagement, non-compete and confidentiality clauses are finally facing scrutiny. Given the FTC’s proposed non-compete rule and related state law developments, plaintiffs’ employment lawyers need to be up-to-speed on these issues. Join our expert panelists who will answer questions that have arisen resulting from the NLRB decision and its effect on our practices:

  • Is the decision retroactive?
  • Should employment lawyers file NLRB charges whenever an employer hands us a settlement agreement with confidentiality/non-disparagement charges?
  • Should we ever agree to these clauses? Does it matter if they aren’t enforceable?
  • Is there a way to fashion non-disparagement clauses after this decision? Confidentiality clauses?
  • Does the decision apply to non-union workers?
  • What about public employees?
  • What about management employees?
  • What are the damages for employers who violate the holding?
  • Will the decision be appealed? What happens when the composition of the NLRB changes?

NELA Briefing: McLaren Macomb

Tuesday, April 11, 2023
12:00 p.m. Pacific/1:00 p.m. Mountain/
2:00 p.m. Central/3:00 p.m. Eastern (75 min)
Free for NELA Members and NELA Affiliate Members


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Allyson L. Belovin

Levy Ratner

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Maneesh Sharma

AFL-CIO General Counsel
Mark Hanna

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Mark Hanna (Moderator)

Murphy Anderson PLLC