NLRB: Severance Pay Cannot Include Condition to Waive Rights Under NLRA

The decision of the National Labor Relations Board (the Board) in McLaren Macomb, 372 NLRB No. 58 ( Feb. 21, 2023), reinstates 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. While the Board bills its decision as a return to the standard applied in earlier cases, this decision suggests that the Board will take a broader view of how such agreements infringe on employees’ rights under Section 7 of the National Labor Relations Act.

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About Author: Gregory Ossi

Gregory Ossi resolves labor law issues and ERISA-related litigation matters for clients in the energy production, mining, government contracting, hospitality, manufacturing and construction industries. Greg counsels employers on a broad range of labor and employee benefits matters, such as collective bargaining, mergers and acquisitions, union organizing and retiree health care with an emphasis on multiemployer pension withdrawal liability. He also has extensive experience negotiating retirement and health care plans pursuant to collective bargaining agreements. View all posts by , , and

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About Author: Matthew A. Fontana

Matthew handles a variety of traditional labor matters for both public and private sector clients under the National Labor Relations Act (NLRA), Labor Management Relations Act (LMRA) and Pennsylvania’s Public Employee Relations Act (PERA). Matthew counsels clients on day-to-day labor/management issues (including union organizing and strike issues), handles grievance/arbitration issues and leads collective bargaining negotiations. Matthew also has Railroad Labor Act (RLA) experience representing both railroad and airline clients. View all posts by , , and

About Author: Gerald T. Hathaway

Gerald Hathaway is a trusted labor and employment adviser during national and international multibillion-dollar transactions, and he has saved clients millions of dollars by uncovering undisclosed labor liabilities during due diligence in deals. Jerry also solves organized labor challenges, reduction-in-force issues and employment disputes for some of the largest companies in the U.S. and the world. Jerry is also part of the firm’s artificial intelligence and algorithmic decision-making (AI-X) team, assessing and evaluating the use of AI and algorithms in employment decisions. View all posts by , , and

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