Non-Disclosure and Non-Disparagement Agreements under Fire: A New Board Decision and a New General Counsel Memorandum, Part II

In the second installment of this two-part Labor Law Insider podcast, attorneys Terry Potter and Tom O’Day join host Tom Godar to discuss the impact of the National Labor Relations Board decision of McLaren Macomb, as well as the new General Counsel Memorandum (GC 23-05) interpreting that decision. As a result, employers need to review their employment-related non-disclosure and non-disparagement provisions in severance agreements. Moreover, O’Day and Potter suggest that the impact could be much broader. For instance, General Counsel Abruzzo takes on non-compete agreements as well as non-solicitation agreements. Further, as presented by the Labor Law Insiders, this likely affects how employers craft policies in handbooks. The inadvertent inclusion of such provisions which could be found in violation of the National Labor Relations Act may also be used by unions to bring claims of unfair labor practices and leverage those claims into bargaining or organizing activities. Potter suggests that while there will be challenges to the breadth of this interpretation of the Act, very often these challenges are upheld because of deference to the expertise of the Board. An alternative strategy, suggested by O’Day, might be for employers to let their representatives in Washington know of the practical impact that such a broad interpretation of the Act might have upon business and its ability to plan for the future. Join us for this provocative discussion regarding the impact of the latest Board decision and General Counsel proclamations.