The General Counsel for the National Labor Relations Board (the “NLRB”) recently issued Memorandum GC 23-05 (the “Memorandum”), expansively interpreting the reach of the McLaren Macomb (“McLaren”) decision and raising more questions about how companies can lawfully use non-disparagement and confidentiality clauses going forward. As we previously reported, in McLaren, the NLRB found that non-disparagement and confidentiality provisions in a severance agreement violated the National Labor Relations Act (“NLRA”), where those provisions had “a reasonable tendency” to interfere with employee NLRA Section 7 rights. Although the Memorandum clarifies some points from McLaren, the General Counsel provides no examples of lawful confidentiality and non-disparagement provisions and seeks to expand the reach of McLaren beyond the facts of that case to cover other types of employment agreements and provisions. Companies should carefully consider the Memorandum when drafting, offering, or enforcing non-disparagement and confidentiality provisions with current and former employees.
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