In February, I wrote regarding the National Labor Relations
Board's (NLRB) recent decision in McLaren McComb on
this blog. That decision held that an employer violated Section
8(a)(1) of the National Labor Relations Act by proffering severance
agreements containing overly broad non-disparagement and
confidentiality clauses. That decision has caused quite a bit of
consternation on the part of employers (and their lawyers) as
non-disparagement and confidentiality clauses have, since time in
memoriam, in almost every employee severance agreement. Late last
month the NLRB's General Counsel (GC) issued memorandum GC
23-05 which sought to clarify some of the questions raised.
The GC made it clear that severance agreements are not banned
and the finding of an objectionable provision will not render the
entire agreement void, but we should take the NLRB at its word that
it is firmly on the path of gutting non-disparagement and
confidentiality clauses from severance
