Ogletree Deakins' Traditional Labor Relations Practice Group is pleased to announce the publication of the Spring 2023 issue of the Practical NLRB Advisor. In this edition of the Advisor, we take a deeper dive into the National Labor Relations Board's far-reaching February 2023 McLaren Macomb decision affecting an employer's use of nondisparagement and confidentiality clauses. In addition to the decision, this issue examines the general counsel's (GC) March 22 memorandum, entitled "Guidance in Response to Inquiries about the McLaren Macomb Decision," clarifying the Board's decision that overbroad nondisparagement and confidentiality provisions in severance agreements are unlawful.
As Memorandum GC 23-05 shows, the post-McLaren posture of the NLRB is clearly aggressive. Importantly, the decision will be applied retroactively and potentially without regard to the NLRA's limitations period. Moreover, the GC has clearly signaled her position that employers that have such agreements with former employees that predate McLaren should notify those former employees that the problematic provisions are no longer in effect.
However, what is most concerning about McLaren and the GC's view of the case is the potentially broad application of its underlying principles. On its facts, McLaren applies only to severance agreements. We should expect the GC to argue, however, that the Board majority's reasoning is equally applicable to any bilateral agreement between an employer and employee—separation or severance agreements, settlement agreements, employment or engagement contracts, etc. The principles announced in the McLaren decision may also be deemed applicable to any unilaterally created employment documents—most notably employee handbooks or employment rules and regulations. McLaren calls all of these into question, and almost certainly presages that the Board will soon revisit its extant decision in the Stericycle case and return to the Obama-era flyspecking of employer rules and handbooks.
Finally, this issue discusses other new developments from the Board, including a rundown of the latest cases and memoranda. We also chronicle some of the other boundary-breaking positions of the current Board majority and examine the emerging trend in the federal courts that is supplying employers with a host of tools to push back.
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