Matthew Purushotham
Fri, 02/24/2023
On February 21, 2023, the National Labor Relations Board issued a decision (McLaren Macomb and Local 40 RN Staff Council, OPEIU) restoring the Board’s longstanding rule that severance agreements that require workers to broadly waive their rights under the National Labor Relations Act (NLRA) violate that law. Specifically, the agreements at issue in McLaren prohibited furloughed hospital employees from making statements that could disparage or harm the image of the employer and from disclosing the terms of the agreement. The agreements also provided for monetary and other penalties should the employees violate those provisions.
This decision reversed a 2020 Board decision (Baylor University Medical Center) finding that offering such severance agreements was not, by itself, unlawful. In reversing the Baylor decision, the NLRB found that it had “granted employers carte blanche to offer employees severance agreements that include unlawful provisions.” The Board explained that severance agreements containing such broad waivers were attempts to deter employees from exercising their statutory rights at a time when employees may feel pressure to do so to obtain other benefits included in the agreements.
Among other relief, the Board ordered the employer to rescind the permanent furloughs of the employees presented with the unlawful furlough agreements and to make them whole for any lost earnings, benefits, or other foreseeable harms.
McGillivary Steele Elkin has successfully reviewed proposed severance and separation agreements on behalf of employees in a wide range of industries. If you your employer has presented you with a severance or separation agreement, and you have questions or concerns about the terms, contact us at info@mselaborlaw.com.
