On February 21, 2023, the National Labor Relations Board (“NLRB”) reversed its prior decisions in Baylor University Medical Center and IGT d/b/a International Game Technology, returning to a longstanding precedent holding that employers may not offer employees severance/separation agreements that require employees to broadly waive their rights under the National Labor Relations Act (“Act”). The NLRB’s decision explains that simply offering employees a sever severance/separation agreement that requires them to broadly give up their rights under Section 7 of the Act violates Section 8(a)(1) of the Act.  Specifically, the NLRB observed that the employer’s offer, in exchange for a non-disparagement agreement and concealment of the terms of the severance/separation agreement, was itself an attempt to deter employees from exercising their statutory rights, at a time when employees may feel they must give up their rights in order to get the benefits provided in the agreement.

Employers operating with a unionized workforce must review their policies and severance/ separation agreements to ensure compliance with the NLRB’s decision in McLaren Macomb, and any Employers unsure of their legal obligations under either the McLaren Macomb decision or the National Labor Relations Act are encouraged to consult with Forchelli Deegan Terrana LLP’s experienced Employment & Labor department.