On February 21, 2023, the National Labor Relations Board issued a decision that impacts employers’ ability to include confidentiality and non-disparagement provisions in employment separation agreements nationwide. In McLaren Macomb, 372 NLRB No. 58 (2023), the Board held that it is an unfair labor practice for an employer to insist that a laid-off employee agree to standard non-disparagement and confidentiality provisions as a condition for receiving severance payments. According to the Board, even run-of-the-mill confidentiality agreements impinge on the right to discuss workplace conditions, and an employer that attempts to persuade an employee to forego those rights violates the National Labor Relations Act. This ruling could have far-reaching consequences regarding the enforceability of future and existing separation agreements and other agreements. As a result of McLaren, employers should assess their need for confidentiality and non-disparagement provisions when separating employees from the company, and determine the most precise, focused way to address those needs in the employer’s severance or separation agreements. Until the Board issues additional guidance, employers may also use caution when it comes to their efforts to enforce existing confidentiality or non-disparagement provisions.
Course Content
12:00 - 12:05 pmIntroductions and Opening Remarks
C. Max Perlman, Esq.,
Gunderson Dettmer, Boston
12:05 - 12:20 pm
Recent History of Board Decisions Regarding Confidentiality and Non-Disparagement Provisions, and Sections 7 and 8 of the National Labor Relations Act
Damien M. DiGiovanni, Esq.,
Morgan, Brown & Joy LLP, Boston
12:20 - 12:35 pm
The McLaren Decision and the Specific Violations Found by the Board
C. Max Perlman, Esq.,
Gunderson Dettmer, Boston
12:35 - 12:45 pm
General Counsel’s Advisory
Lisa A. Stephanian Burton, Esq.,
Ogletree, Deakins, Nash, Smoak & Stewart, PC, Boston
12:45 - 12:55 pm
Potential Impact of McLaren on Current and Future Employment Separation Agreements and Negotiations, Including Which Employees Are Affected
Lisa A. Stephanian Burton, Esq.,
Ogletree, Deakins, Nash, Smoak & Stewart, PC, Boston
12:55 - 1:05 pm
Does McLaren Apply Retroactively or Impact Agreements or Other Clauses in a Separation Agreement, Like Non-Cooperation Provisions?
Lisa A. Stephanian Burton, Esq.,
Ogletree, Deakins, Nash, Smoak & Stewart, PC, Boston
1:05 - 1:20 pm
Strategies for Drafting Confidentiality and Non-Disparagement Provisions That May Comply with McLaren, Including Potential Carve-Outs and Workarounds
Arielle B. Kristan, Esq.,
Hirsch Roberts Weinstein LLP, Boston
1:20 - 1:35 pm
Challenges to Consider When Attempting to Enforce Existing Non-Disparagement and Confidentiality Provisions
Arielle B. Kristan, Esq.,
Hirsch Roberts Weinstein LLP, Boston
1:35 - 1:45 pm
Consequences and Penalties for Engaging in Unfair Labor Practices and Running Afoul of McLaren
Damien M. DiGiovanni, Esq.,
Morgan, Brown & Joy LLP, Boston
1:45 - 1:55 pm
Potential Legal Challenges to McLaren, Including to Federal Appellate Courts
C. Max Perlman, Esq.,
Gunderson Dettmer, Boston
Damien M. DiGiovanni, Esq.,
Morgan, Brown & Joy LLP, Boston
Please Note
This webcast is delivered completely online, underscoring their convenience and appeal.
There are no published print materials. All written materials are available electronically only.
They are posted 24 hours prior to the program and can be accessed, downloaded, or printed from your computer.
Speakers
ChairC. Max Perlman, Esq.,
Gunderson Dettmer , Boston
Faculty
Lisa A. Stephanian Burton, Esq.,
Ogletree, Deakins, Nash, Smoak & Stewart, PC, Boston
Damien M. DiGiovanni, Esq.,
Morgan, Brown & Joy LLP, Boston
Arielle B. Kristan, Esq.,
Hirsch Roberts Weinstein LLP, Boston
