– The National Labor Relations Board ruled that broad non-disparagement and confidentiality provisions in separation agreements with employees are unlawful under the National Labor Relations Act.
– The provisions in the separation agreement preventing employees from disclosing the terms of the agreement or making statements that could harm the employer’s image violate employees’ NLRA rights.
– Section 7 of the NLRA allows covered employees to engage in concerted activities for mutual aid or protection, and it is an unfair labor practice for an employer to interfere with or coerce employees in exercising these rights. 1. The NLRB has interpreted Section 7 rights broadly to include communication with third parties related to labor disputes.
2. The NLRB found that separation agreements that interfere with employees’ NLRA rights are unlawful.
3. The NLRB stated that an employer’s lack of intent to coerce or the employee’s non-acceptance of an illegal agreement does not absolve the employer from ULP charges.
4. The decision does not specify whether a disclaimer will prevent a separation agreement with non-disparagement or confidentiality provisions from being held invalid.
5. Employers should be cautious not to require employees with Section 7 rights to agree to broad confidentiality and non-disparagement provisions in separation agreements. – The NLRA applies to private-sector employers and protects unionized and nonunionized workers, but not independent contractors and most supervisors.
– The recent NLRB opinion reminds employers to consider employees’ nonwaivable rights under other employment statutes when preparing separation agreements.
– Non-disparagement and confidentiality provisions in separation agreements may violate employee rights in certain circumstances, according to government agencies and courts.
What Employers Need To Know About A Recent Ruling Challenging Separation Agreements
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