The National Labor Relations Board recently ruled that employers may not offer employees severance agreements that require employees to broadly waive their rights under the National Labor Relations Act.
On February 21, 2023, the National Labor Relations Board issued a decision in McLaren Macomb returning to longstanding precedent that employers cannot offer employees severance agreements that require employees to broadly waive their rights under the National Labor Relations Act.
The case involved severance agreements offered to furloughed employees that prohibited them from making statements that could disparage the employer and from disclosing the terms of the agreement itself. Bloomberg Law reported:
The NLRB’s ruling came in a case involving pandemic-driven layoffs at McLaren Macomb, a teaching hospital in Mount Clemens, Mich. The hospital had included confidentiality and non-disparagement provisions in the separation agreements for staffers let go in 2020, including workers represented by an Office and Professional Employees International Union affiliate.
From a press release:
The decision reverses the previous Board’s decisions in Baylor University Medical Center and IGT d/b/a International Game Technology, issued in 2020, which abandoned prior precedent in finding that offering similar severance agreements to employees was not unlawful, by itself.
Today’s decision, in contrast, explains that simply offering employees a severance agreement that requires them to broadly give up their rights under Section 7 of the Act violates Section 8(a)(1) of the Act. The Board observed that the employer’s offer is itself an attempt to deter employees from exercising their statutory rights, at a time when employees may feel they must give up their rights in order to get the benefits provided in the agreement.
“It’s long been understood by the Board and the courts that employers cannot ask individual employees to choose between receiving benefits and exercising their rights under the National Labor Relations Act,” NLRB Chair Lauren McFerran (D) said in a statement. “Today’s decision upholds this important principle and restores longstanding precedent.”