As part of the Trump Administration’s significant efforts to roll back the Biden Administration’s policies, the Acting General Counsel of the National Labor Relations Board (the “NLRB”) recently rescinded, via Memorandum GC 25-05, more than 30 Biden Administration memoranda. Chief among the rescinded memoranda is the NLRB’s 2023 guidance regarding non-disparagement and confidentiality provisions included within non-managerial employees’ severance agreements, which followed the NLRB’s February 21, 2023 decision in McLaren Macomb.
In McLaren Macomb, which we discussed in detail here, the NLRB held that broadly drafted non-disparagement provisions violate the NLRA (“National Labor Relations Act”) because such provisions are read to bar virtually any harmful statement against an employer, including any statement that the employer violated the NLRA. The NLRB found that broad confidentiality provisions similarly violate the NLRA because an employee would be prevented from disclosing information to the NLRB, or otherwise would be prevented from discussing the terms of the severance agreement with former colleagues in contravention of an employee’s NLRA right to discuss workplace issues.
In short, the McLaren Macomb decision upset the apple cart, as widely used non-disparagement and confidentiality provisions were rendered potentially unlawful. In Memorandum GC 23-05, which we summarize here, the NLRB offered further guidance regarding enforceable non-disparagement and confidentiality provisions in severance agreements, but in the wake of McLaren Macomb, many employers (and their lawyers) had to revisit and recalibrate confidentiality and non-disparagement provisions to ensure continued enforceability.
Fast forward to 2025, Memorandum GC 23-05 is among the many NLRB memorandums the Trump Administration rescinded. As a result, it is unclear the exact stance that the NLRB will take regarding non-disparagement and confidentiality provisions. Of course, employers should also remain aware of other federal and state requirements, which limit, or otherwise prohibit, confidentiality and/or non-disparagement provisions in severance agreements regardless of the NLRB’s stance. The Mintz employment team will continue to monitor this “seesaw” in terms of NLRB guidance, and stands ready to assist employers in deciphering the layers of federal and state requirements of the subject matter and revising agreements and policies as needed.
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