On March 22, 2023, the National Labor Relations Board’s (“NLRB”) General Counsel Jennifer Abruzzo issued Memorandum GC 23-05 (the “Memo”), which provides additional guidance on the recent NLRB decision in McLaren Macomb, 372 NLRB No. 58 (2023).

As we recently reported, McLaren held that employers violate the National Labor Relations Act (“NLRA”) when they merely offer non-supervisory/management employees, both union and non-union, severance agreements that contain overly broad confidentiality and/or non-disparagement provisions.

The Memo, which was issued to “assist Regions [of NLRB offices] in responding to inquiries from workers, employers, labor organizations and the public about implications stemming from that case,” responds to some common inquiries regarding the impact of the McLaren decision. Among other things, the Memo makes clear the following:

  • Severance agreements are not banned outright.
  • Whether or not the employee actually signed the severance agreement is irrelevant for purposes of finding a violation under the Act since the proffer itself is inherently coercive.
  • While supervisors generally are not protected by the NLRA, it would be violative for an employer to retaliate against a supervisor who refuses to proffer to an employee an unlawful separation agreement.
  • McLaren applies retroactively to agreements proffered before February 21, 2023.
  • Agreements generally should not be found to be void in their entirety because they include unlawful provisions, even if the agreement does not include a severability clause.
  • Disclaimer language regarding rights afforded under the NLRA in the agreement may not necessarily cure overly broad provisions.
  • Confidentiality and non-disparagement provisions that are narrowly tailored may be found lawful. 

While the Memo provides Abruzzo’s opinion on many frequently asked questions, others remain. Employers should review the Memo, found here, in order to educate themselves on how the NLRB is going to apply and interpret McLaren going forward (in the absence of an appeal and further direction from the courts, which may be yet to come).

Murtha Cullina attorneys are available to assist you with revising your severance agreements in accordance with the new rules and will continue to follow and report on any further developments regarding this decision.

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Photo of Salvatore G. Gangemi Salvatore G. Gangemi

Salvatore G. Gangemi, a partner at Murtha Cullina, is a veteran labor and employment lawyer with nearly 30 years of litigation and counseling experience.

Employers from across the industry spectrum, including established companies in the senior living and health care fields; manufacturing, construction…

Salvatore G. Gangemi, a partner at Murtha Cullina, is a veteran labor and employment lawyer with nearly 30 years of litigation and counseling experience.

Employers from across the industry spectrum, including established companies in the senior living and health care fields; manufacturing, construction, retail and service firms; and emerging companies, seek Sal’s legal counsel to navigate today’s complex local, state and federal employment laws. His practice includes resolving disputes; advocating in courts and before administrative agencies; counseling on employment-related issues arising from acquisitions; and guiding clients in both long-range strategy and day-to-day administration of their workplaces and employees.

At the federal level, Sal brings extensive experience in OSHA investigations, audits and proceedings; the Fair Labor Standards Act (FLSA); Title VII discrimination matters; the Age Discrimination in Employment Act (ADEA); the Americans with Disabilities Act (ADA); and the Family Medical Leave Act (FMLA). He is also well-versed in state and local employment regulations.

Sal regularly represents clients in matters before the Equal Employment Opportunity Commission (EEOC), the U.S. Department of Labor and other federal agencies. On the state level, he appears before the New York State Division of Human Rights; the New York City Commission on Human Rights; the Connecticut Commission on Human Rights and Opportunities; the Connecticut Department of Labor; and the New York State Department of Labor. He has litigated cases involving misappropriation of trade secrets, restrictive covenants, breach of employment contract, fiduciary duty and other work-related common law claims.

Clients rely on Sal’s advice on routine human resources matters that arise in their businesses, including requests for reasonable accommodation for those with disabilities, family and medical leave issues, hiring and termination, and wage and hour concerns. Known for his proactive approach to identifying issues before they escalate, he conducts compliance training on sexual harassment prevention and other topics, performs worker classification practice and policy audits, and drafts employment policies and agreements. Sal shares his knowledge of the ever-evolving employment law landscape by speaking at events, conducting continuing legal education seminars and writing articles for a variety of publications.

Photo of Patricia E. Reilly Patricia E. Reilly

Patricia E. Reilly, a partner at Murtha Cullina, serves as chair of  the firm’s Labor & Employment practice and co-chair of the Education practice.

She litigates employment, wage and hour, and restrictive covenant cases in state and federal courts. She also appears before…

Patricia E. Reilly, a partner at Murtha Cullina, serves as chair of  the firm’s Labor & Employment practice and co-chair of the Education practice.

She litigates employment, wage and hour, and restrictive covenant cases in state and federal courts. She also appears before the Connecticut Commission on Human Rights and Opportunities, the EEOC, the Connecticut Department of Labor, and the U.S. Department of Labor. Whether resolving a matter pre-litigation or litigating a case to trial, Tricia uses her first-rate strategic litigation skills to advocate for her clients’ interests. She works closely with her clients to ensure that the litigation is executed with the highest degree of skill and professionalism.

In addition to maintaining a thriving litigation practice, Tricia advises clients on a wide range of employment law matters, including sexual harassment and discrimination avoidance; disability and pregnancy accommodation; FMLA; wage and hour compliance; and trade secrets and restrictive covenants. She also provides training and presents on labor and employment issues, particularly sexual harassment prevention.  Tricia represents clients in a wide range of industries and sectors, including education (colleges, universities and independent schools), health care, financial services, retail, food and beverage, transportation services, energy, and manufacturing.

Tricia is listed as a leading Labor and Employment Lawyer in Chambers USA. In addition, she is listed in Best Lawyers in America®. In 2017 and 2020, Best Lawyers in America® recognized her as “Lawyer of the Year” for New Haven, Litigation – Labor and Employment, and in 2020 Best Lawyers also recognized her as “Lawyer of the Year” for New Haven Employment Law – Management.  In 2019 and 2020, Super Lawyers listed Tricia among the Top 25 Women Attorneys in Connecticut.