March 22, 2023

NLRB GC Clarifies Ruling on Non-Disparagement & Confidentiality Clauses

Last month’s newsletter included an article about the National Labor Relations Board’s ruling that an employer’s non-disparagement and confidentiality clauses in a severance agreement violated the National Labor Relations Act.

On March 22nd, the NLRB’s General Counsel issued a memo that supplemented that ruling. Some key take-aways are:

  • Simply proffering an agreement with overbroad restrictions may violate the NLRA, even if the employee does not sign it.
  • The decision is retroactive and applies to existing agreements as well as former employees.
  • The decision applies to not just severance agreements but to “any employer communication to employees.”
  • Other clauses that the GC views as “problematic” include noncompete clauses; no solicitation clauses; no poaching clauses; broad liability releases and covenants not to sue.”

? Review your employment agreements, contracts, offer letters and other communications. Work with your company’s legal counsel to review them with an eye to the NLRA, as well as your state and local laws that may have enacted similar limitations to these restrictive covenants.