Posts tagged Severance Agreements

    NLRB General Counsel Says Confidentiality, Nondisparagement Clause Decision Applies Retroactively

    March 23, 2023 // National Labor Relations Board (NLRB) General Counsel (GC) Jennifer Abruzzo issued a memorandum clarifying the Board’s February 2023 decision that nondisparagement and confidentiality provisions in severance agreements are unlawful. In the memorandum, the GC states that she interprets the decision to apply to agreements already signed and that claims would not be time-barred as long as an employer maintains or enforces such terms. In McLaren Macomb, the Board found that conditioning severance agreements on the acceptance of nondisparagement and confidentiality terms and the mere proffer of such terms are unlawful because they restrict workers’ rights under the National Labor Relations Act (NLRA). Open questions following the Board’s decision included what exactly it means for the use of separation agreements and whether the decision will be applied retroactively to agreements that already contain such terms. Abruzzo’s new memorandum offered further guidance on her interpretation of the impact of the decision that employers may want to consider in drafting and enforcing separation agreements. Here are some key points of the memorandum.