On February 21, 2023, the National Labor Relations Board (“NLRB” or the “Board”) issued a decision in McLaren Macomb restricting the ability of employers to include broad non-disparagement and confidentiality clauses in severance agreements if such clauses have a reasonable tendency to interfere with, restrain, or coerce employees in the exercise of their rights under Section 7 of the National Labor Relations Act (“NLRA” or the “Act”). Section 7 of the Act provides non-managerial employees the right to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, such as by discussing the terms and conditions of employment with others. Not only did the Board find the broad confidentiality and non-disparagement clauses unlawful due to their infringement on Section 7 rights, but it also held that simply offering an employee a severance agreement with this overbroad language was unlawful, even if the employee does not sign the agreement. And while the employees in McLaren Macomb were unionized, employers are reminded that all non-managerial and non-supervisory employees, not just those working in unionized environments, have Section 7 rights.

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