New guidance guts NDAs, nondisparagement clauses
The National Labor Relations Board's general counsel has issued new guidance on severance and employment agreements — and the trash-talking online has already begun.
NLRB General Counsel Jennifer Abruzzo issued a memo to field offices on March 22 after an earlier ruling, which does not apply to supervisory workers, found that a severance agreement for 11 union workers that included broad nondisparagement and confidentiality terms was unlawful because they would interfere with the workers' rights to organize their workplace and in general call for better working conditions or other issues.
“Lawful severance agreements may continue to be proffered, maintained, and enforced if they do not have overly broad provisions that affect the rights of employees to engage with one another to improve their lot as employees,” said Abruzzo. “(However), the future rights of employees as well as the rights of the public may not be waived in a way that precludes future exercise of Section 7 rights, including engaging in protected concerted activities and accessing the Agency.”
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The memo stressed that employers could still include nondisparagement terms in severance and employment agreements, but they would have to remain extremely limited. That includes the idea that workers cannot voluntarily give up nondisparagement rights or agree to broader confidentiality agreements in exchange for more money. Abruzzo stressed that communications about work were not just between co-workers but included the general public and the media and that the NLRB ruling was not just about severance agreements but in general communications between employers and employees.
https://www.bizjournals.com/seattle/news/2023/03/28/nlrb-nda-nondisparagement-rights-union.html