Key NLRB Decisions Shaping Labor Relations in 2023
By Jacqueline Voronov Partner, Hall Booth Smith, P.C. | December 2023
In 2023, the National Labor Relations Board (NLRB) has handed down significant decisions that have far-reaching implications for both employers and employees.
Many employers don't give a second thought to the NLRB, much to their peril, because more than 90 percent of all non-public employees do not belong to unions.
However, both union and non-union employers must always be mindful of compliance with the National Labor Relations Act ("NLRA") because the board's recent aggressive enforcement efforts among non-union employers are unprecedented and can no longer be ignored. It is clear that non-union employers' policies and procedures are now much more likely than ever to draw the attention of the NLRB.
Non-Disparagement And Confidentiality Clauses Are Illegal In Severance Agreements
Numerous companies tender severance agreements to employees when they are separated from employment under various circumstances. These agreements routinely contain releases of claims that seek to resolve most potential claims a former worker may have against an organization. Severance agreements also typically include confidentiality provisions that preclude an employee from disclosing the financial terms of the agreement, as well as provisions that prevent the former employee from disparaging the company to third parties. Until this year, nothing about this was improper.
With its February 21 decision in McLaren Macomb, the NLRB's Democratic majority overturned the board's Baylor University Medical Center decision, ruling that a severance agreement violates the NLRA if its terms tend to interfere with workers' organizing rights. In other words, companies that make former workers promise not to disparage their former employers in exchange for a severance payment are breaking federal law. What's more, it is also illegal to prevent employees from disclosing the terms of their severance packages, the NLRB said.