Earlier this week, the National Labor Relations Board (NLRB) continued its reversal of decisions reached during the Trump administration, reinstating prior precedents. This time, the Board reversed two decisions that limited the circumstances under which confidentiality and non-disparagement clauses in severance agreements with employees could be deemed a violation of employee rights to engage in concerted activity.

In McLaren Macomb, the NLRB reinstated its prior standard that deems such provisions to violate federal labor laws when they have a reasonable tendency to interfere with employees’ rights under the National Labor Relations Act (NLRA). The Trump-era Board required a demonstration that the provisions were intended to and actually interfered with such organizing rights.

This decision does not mean that all such provisions in employee severance agreements are prohibited. However, when the employees are already represented by a union, or where the workplace has undergone recent organizing activity, employers should make clear that severance agreements will not be interpreted to interfere with employees’ rights under the NLRA.

If political control over the NLRB’s membership changes in the next election, employers can count on a future Board to reverse this latest decision, and reinstate the overturned opinions. As with many employment and labor law principles, rules governing employee rights and employer conduct can be expected to shift based on which party controls the White House.

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