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The General Counsel of the National Labor Relations Board (NLRB), Jennifer A. Abruzzo, issued guidance on March 22, 2023, about the NLRB’s McLaren Macomb, 372 NLRB No. 58, decision from February 21, 2023, which reinstated a limit on the confidentiality, non-disclosure, and non-disparagement clauses that employers may include in severance agreements with most of their lower-level employees.[1]  While not law, the General Counsel’s guidance is intended to address the uncertainty among employers regarding what language is deemed acceptable to include in severance agreements and what language may create liability under the National Labor Relations Act (NLRA) following McLaren Macomb.[2]

The McLaren Macomb decision specifically held that employers may not condition severance on the employee’s waiver of rights protected by the NLRA and that agreements between employers and employees that restrict employees from engaging in activity protected by the NLRA or from filing unfair labor practice (ULP) charges with the NLRB, helping other employees in doing so, or assisting during the Agency’s investigatory process are unlawful. The NLRB 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 also provided that the conduct of an employer is irrelevant to assessing the lawfulness of a severance agreement, and the plain language of the severance agreement alone can constitute a violation.  While the Maclaren Macomb decision has been described as a return to the standard applied in earlier cases, many speculate that it indicates that the NLRB intends to take a broader view of how severance agreements infringe on employees’ rights under Section 7 of the NLRA.Continue Reading NLRB Returns to Longstanding Position Limiting Use of Confidentiality, Non-Disclosure, and Non-Disparagement Clauses in Employee Severance Agreements

Last week, the U.S. House of Representatives narrowly passed the Protecting the Right to Organize (“PRO”) Act, which would make sweeping union-friendly changes to the three primary federal laws that govern private-sector labor relations: the National Labor Relations Act (“NLRA”), the Labor Management Relations Act, and the Labor-Management Reporting and Disclosure Act of 1959. …

In recent years the National Labor Relations Board (NLRB) has aggressively sought to emphasize that its reach extends beyond solely unionized workforces.  On March 18, 2015, NLRB General Counsel Richard Griffin released a 30-page report that provides labor lawyers and HR professionals guidance on what the General Counsel contends is – and is not – a lawful employee handbook rule under the National Labor Relations Act (NLRA).  The General Counsel’s report makes clear just how broadly the Board applies its rules, finding fault in a number of common-sense workplace practices regarding confidentiality, criticism of the company, misconduct, communication with the public or the media, conflicts of interest, and a variety of other topics.   Non-union employers may be asking, “Why do I care?”  But the NLRA applies to every employer (at least those engaged in “interstate commerce,” which is almost everyone).

Virtually anyone – individual employees, union organizers or other non-employees – can (and does) file Board complaints, and one of the first things the NLRB’s investigator will ask you for is your policies.  Even if the investigator concludes the charge is without merit, if you are “maintaining” overly broad policies, you may have a fight with the NLRB on your hands – and at the very least you will face a demand to modify the policy and post a notice informing employees of your transgression and your commitment to upholding employee rights to participate in protected, concerted activity.  If you’ve got a union lurking (or campaigning), that’s like free (and forced) advertising, telling employees why they need a union.

We’ve written about the NLRB’s scrutiny of employer rules on social media use and off-duty access, but this report is a “one stop shopping” trip for purposes of NLRA compliance.  The report (available here) provides real-life examples of allegedly unlawful and lawful policies and the reasoning behind the decisions.  And it provides (starting at page 26) what some might view as “model” policies prepared by Wendy’s International LLC and the NLRB pursuant to a Board settlement agreement. You may not like – or decide to adopt – the stance that the General Counsel has taken on these policies, but at least you (sort of) know his position on many handbook policies.
Continue Reading NLRB Says “Mere Maintenance” of Employee Handbook Rules May Violate the NLRA

FootballOn October 28, 2014, the National Labor Relations Board (“NLRB”) issued its decision in Murphy Oil USA Inc., once again attempting to prohibit employers from requiring employees to enter into agreements to arbitrate employment disputes if those agreements preclude collective or class action litigation. As we have blogged about in the past, this new decision runs contrary to an overwhelming majority of federal district and appellate court decisions rejecting and criticizing the Obama NLRB’s previous attempt to so extend the law.  A copy of the Murphy Oil USA decision can be found here.

In Murphy Oil, the NLRB split 3-2 along party lines, with the majority finding that gas station chain Murphy Oil’s arbitration agreements were unlawful.  In so doing, the NLRB reaffirmed its controversial January 2012 DR Horton ruling, where the Board ruled that such agreements conflict with employees’ rights to engage in concerted activity under the National Labor Relations Act.  The Fifth Circuit Court of Appeals refused the enforce the Board’s order, and the NLRB declined to seek review from the U.S. Supreme Court.  In what some might say is refusing to take “no” for an answer, the NLRB is trying to resurrect its DR Horton decision.Continue Reading NLRB Attempts to Make an End Run Around Courts Invalidating its Rulings on Arbitration Agreements

The Obama NLRB’s regulatory agenda continues to fare poorly in the federal courts.  On the heels of court decisions staying the NLRB’s new “notice” requirement, see previous posts here, the United States District Court for the District of Columbia Circuit has just struck down the NLRB’s new rules designed to speed up union representation …

The NLRB’s new posting rule, which would apply to virtually all private sector employers, was scheduled to go in effect on April 30, 2012.  Yesterday, we blogged about a South Carolina federal trial court decision striking down the posting rule.  More good news for employers arrived today, as the United States Court of Appeals for …

As previously blogged here, a federal court located in the District of Columbia upheld the National Labor Relations Board’s (“NLRB”) rule requiring nearly all private sector employers, whether unionized or not, to post a notice to their employees about certain employee rights under the National Labor Relations Act.  While upholding the rule, that federal …

Update: A federal trial court in the District of Columbia has upheld the notice posting requirement in the National Labor Relations Board’s (“NLRB”) recently issued final rule requiring nearly all private sector employers, whether unionized or not, to post a notice to their employees about certain employee rights under the National Labor Relations Act. To …

Your bulletin board full of required workplace postings just got more crowded. The National Labor Relations Board (“NLRB”) has issued a final rule that will require nearly all private sector employers, whether unionized or not, to post a notice to their employees about certain employee rights under the National Labor Relations Act (“NLRA”). The notice must…