NLRB Says All Prior Severance Agreements with Certain Clauses are Unlawful

NLRB says all prior severance agreements with confidentiality and nondisparagement clauses are unlawful. Even if entered into freely years ago. And the NLRB wants (but can’t require) employers to call past employees and let them know that those parts of the agreements no longer exist.

Confidentiality agreements targeting dissemination of trade secrets based on “legitimate business justifications” and nondisparagement clauses that prohibit maliciously untrue statements are OK.

The NLRB GC also foreshadows finding the following clauses unlawful in severance agreements:

* Non-compete clauses

* No solicitation clauses

* No poaching clauses

* Broad liability releases and covenants not to sue that may go beyond the employer and/or may go beyond employment claims and matters as of the effective date of the agreement

*Cooperation requirements involving any current or future investigation or proceeding involving the employer as that affects an employee’s right to refrain under Section 7, such as if the employee was asked to testify against co-workers that the employee assisted with filing a ULP charge.