Over the last two years, the National Labor Relations Board (“NLRB”) has been aggressively trying to expand its coverage in a manner that has taken many employers of non-unionized employees by surprise. Many rules and concepts that have been in place for decades without challenge have been turned on their heads and are now construed to be illegal. One example is a decision by the NLRB earlier this year in McLaren Macomb ruling that common confidentiality and non-disparagement provisions in settlement and separation agreements are illegal, as a matter of law, because they could – at least theoretically – chill a worker’s right to engage in concerted activity protected under the National Labor Relations Act (“NLRA”). The takeaway from these actions by the NLRB and its General Counsel is that all policies and practices of every employer – unionized and non-unionized – will be scrutinized under the NLRB’s new highly powered microscope. In other words, employers watch out!
In a case decided by the National Labor Relations Board (“NLRB” or “Board”) on February 23, 2023, provisions in separation and settlement agreements regarding non-disparagement and confidentiality may run afoul of the National Labor Relations Act (“NLRA” or “Act”). On March 22, 2023, in an effort to provide guidance as to the scope and impact of the decision, the NLRB’s General Counsel issued a Guidance for how its regional offices should evaluate these agreements going forward. The Guidance suggests that the decision has even broader ramifications than initially thought. As described below, the decision along with the Guidance should cause employers to pause before inserting many commonly used provisions in these types of agreements.…
As employee complaints about safety and the availability of personal protection equipment (“PPE”) mount, employers should remember that the law protects employees engaged in concerted action. Specifically, the National Labor Relations Act (“NLRA”) protects the right of employees “to engage in… concerted activities for the purpose of… mutual aid or protection.” These protections apply to both unionized and non-unionized employees.
Continue Reading A Timely Reminder: Employee Complaints About Working Conditions Are Protected