National Labor Relations Board General Counsel Jennifer Abruzzo has officially stated that employers cannot offer non-disparagement agreements in severance packages and that any previous non-disparagement agreements are void. In other words, the NLRB has made it official that after you move on from your place of employment, you can get away with openly talking trash about your old boss.
The National Labor Relations Board General Counsel Jennifer Abruzzo issued a memo this week that clarifies the board’s McLaren Macomb decision made this past February. The decision forbids employers from offering non-disparagement agreements in severance packages, but whether or not that decision applied to non-disparagement agreements made in the past was up for debate. Abruzzo’s new memo to NLRB regional offices makes clear that employers violate the National Labor Relations Act when they offer employees severance agreements that require workers to broadly waive their rights under the Act.
“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” Abruzzo wrote in the memo. “Board cases are presumed to be applied retroactively and this decision has retroactive application.”
As Vice describes, non-disparagement agreements are a business’ attempt at silencing former employees from speaking out about a company’s working conditions or staff in exchange for a few weeks of severance pay. The only exception to the rule is confidentiality clauses that apply to proprietary or trade secret information, but any businesses enforcing other non-disparagement agreements would be subject to enforcement by the NLRB.
The NLRB’s decision and subsequent clarification are another ball in the court of America’s workforce. Earlier this year, the Federal Trade Commission proposed killing noncompete clauses, which are used to prevent workers from working for a competitor or starting a competing business either within a geographical area or for a certain period of time after the employee exits the company.
