NLRB Clears Separation Agreement Clauses Because Timing Matters

NLRB Division of Advice just cleared two provisions employers frequently use in layoff separations: a non-solicitation clause and a cooperation requirement. Both were lawful.

During a 2024 layoff, the company presented employees with a separation agreement containing:

1. Non-solicitation: Don’t solicit our employees, clients, or business partners post-separation.

2. Cooperation clause: Former employees must cooperate with outstanding legal, regulatory, or investigative matters.

An employee wrongly claimed both violated the NLRA.

Per the NLRB, timing is key. Since these provisions applied only AFTER employment ends, they don’t restrict protected conduct during employment—like employees assisting each other on job security or benefits.

The Board has never found unlawful a requirement that former employees cooperate on company investigations. Post-employment questioning does not affect laid-off workers; it affects only remaining employees.

Employers should use separation agreements strategically. Non-solicitation and cooperation clauses that apply strictly post-employment are solid protection for your business interests during layoffs.

Pre-employment rules must still not chill Section 7 rights. Post-employment rules generally clear that bar.