Severance Agreements Under Attack: 3 Key Takeaways From NLRB Memo

Recently, the National Labor Relations Board (“NLRB”) issued a controversial decision in McLaren Macomb, ruling that employers violate the National Labor Relations Act (“NLRA”) when they include confidentiality and non-disparagement clauses in severance agreements. Specifically, the NLRB found the following clauses included in a severance agreement are unlawful:

• Confidentiality. The Employee acknowledges that the terms of this Agreement are confidential and agrees not to disclose them to any third person other than spouse, or as necessary to professional advisors for the purpose of obtaining legal counsel or tax advice, or unless legally compelled to do so by a court or administrative agency of competent jurisdiction.