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NLRB General Counsel Issues Memo with Guidance to Regions on Severance Agreements

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Today, NLRB General Counsel Jennifer Abruzzo issued a memo to all Field Offices with guidance on the Board’s recent decision in McLaren Macomb, in which the Board returned to longstanding precedent holding that employers violate the National Labor Relations Act when they offer employees severance agreements that require employees to broadly waive their rights under the Act. The guidance will assist Regions in responding to inquiries from workers, employers, labor organizations, and the public about implications stemming from the case.

The memo offers guidance on the decision’s scope and effect, such as the retroactive effect of the decision and the application of the decision to supervisors. The memo also provides guidance on the kinds of severance agreement provisions that could violate the Act if proffered, maintained, or enforced, including confidentiality, non-disclosure, and non-disparagement, among others.

“Lawful severance agreements may continue to be proffered, maintained, and enforced if they do not have overly broad provisions that affect the rights of employees to engage with one another to improve their lot as employees” said General Counsel Abruzzo. “[However], the future rights of employees as well as the rights of the public may not be waived in a way that precludes future exercise of Section 7 rights, including engaging in protected concerted activities and accessing the Agency.”

If workers believe their rights have been violated by the proffer, maintenance, or enforcement of unlawful severance agreements, or have questions, they can call the NLRB at 1-844-762-6572 and speak with an information officer.

GC 23-05 reflects guidance from the NLRB’s General Counsel and does not represent the views of the Board.

Established in 1935, the National Labor Relations Board is an independent federal agency that protects employees from unfair labor practices and protects the right of private sector employees to join together, with or without a union, to improve wages, benefits and working conditions. The NLRB conducts hundreds of workplace elections and investigates thousands of unfair labor practice charges each year.