How the NLRB’s Decision to Prohibit Non-Disclosure Provisions in Severance Agreements Affects Employees

The National Labor Relations Board (NLRB) made a decision on September 14, 2021, that affects employees across the United States. In a 3-1 ruling, the NLRB found that employers cannot use non-disclosure provisions in severance agreements to prevent employees from discussing or disclosing information about workplace harassment, discrimination, or other potentially unlawful conduct. This decision has significant implications for employees, their rights, and what they need to know.

What does this mean for employees? It means that if you have experienced harassment, discrimination, or other unlawful conduct in the workplace, you have the right to discuss these issues with others without fear of retaliation from your employer. Non-disclosure provisions in severance agreements that prohibit you from discussing such issues will likely be deemed overly broad and unenforceable under the National Labor Relations Act (NLRA).

The NLRA protects employees’ rights to engage in concerted activity for mutual aid or protection, which includes discussing workplace conditions, wages, and other terms of employment. This means that non-disclosure provisions that interfere with these rights are not allowed. If you have signed a severance agreement with a non-disclosure provision, you should review the agreement to ensure that it does not violate your rights under the NLRA.

The NLRB’s decision could have particular significance for employees of companies like Aerotek, a staffing agency that provides temporary workers to other companies. In 2018, Aerotek settled with a former employee who had accused the company of sexual harassment and retaliation. As part of the settlement, the employee agreed not to disclose any information about the settlement to anyone outside of her immediate family, unless required to do so by law.

The NLRB’s General Counsel challenged the non-disclosure provision in the Aerotek settlement agreement, arguing that it violated the employee’s rights under the NLRA. The NLRB agreed, finding that the provision interfered with the employee’s right to engage in concerted activity for mutual aid or protection.

If you believe that your employer has violated your rights under the NLRA, you may be able to file an unfair labor practice charge with the NLRB. This decision gives you the ability to speak up and discuss issues that affect you and your colleagues without fear of retaliation.

In conclusion, the NLRB’s decision to prohibit non-disclosure provisions in severance agreements is an important development for employees. It gives you the freedom to discuss workplace issues and protects your rights under the NLRA. If you have signed a severance agreement with a non-disclosure provision, make sure to review it to ensure that it does not violate your rights under the NLRA. If you believe that your employer has violated your rights, you may be able to file a charge with the NLRB.