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?
