A recent decision from the National Labor Relations Board (NLRB) regarding non-disparagement agreements has many US workers excited that they may now be free to publicly criticize their former employer or talk about the terms of severance agreements. And when a new memo issued by the board’s general counsel clarified that this decision could apply retroactively, it set off a series of headlines and commentary suggesting that all confidentiality clauses, at least in severance agreements, are now void.
But employees with an ax to grind should proceed with caution. According to legal experts, the decision doesn’t actually void all non-disparagement and non-disclosure clauses, nor does it prohibit the creation of new ones—and employees could still be held legally liable for the things they say. Before you go public with your complaints, you should consult a lawyer about what’s still considered confidential.
So what’s the NLRB’s guidance on non-disparagement clauses?
In February, the National Labor Relations Board (NLRB) reviewed a case in which an employer offered severance pay to 11 workers on the condition that they would neither make statements that “could disparage or harm the image” of the employer, its affiliates, and its employees, nor disclose the terms of the agreement. The NLRB determined that these terms violated the National Labor Relations Act, which gives workers the right to act in the interest of “mutual aid and protection.”
“Mutual aid and protection” can mean a lot of things, says Jeffrey Hirsch, who teaches employment law at the University of North Carolina School of Law. “But among the things it includes is—just to put it plainly—complaining about your employer.”
The NLRB determined that prohibiting employees from speaking negatively about the company and anyone attached to it or talking about the severance agreement itself is too broad. A clause like this “chills employees’ ability to complain about, or criticize, an employer’s employment practices. That’s the heart of the labor law concern there,” Hirsch says.
What you can—and can’t—say after signing a non-disparagement agreement
But a prohibition on “overly broad” non-disparagement and non-disclosure agreements doesn’t mean you can say whatever you like about your current or former employer. Employees still can’t give away confidential information or trade secrets, and they can’t lie about their employer, Hirsch notes.
David Super, a professor at Georgetown Law, gives this example. Let’s say a software engineer says their employer’s products are terrible and that consumers should buy from a competitor. “That has nothing to do with worker well-being, so that would be an entirely legitimate thing for a clause to prohibit,” says Super.
However, if that software engineer wants to say something like “they made us work sixteen-hour shifts, seven days a week to get this thing done,’” says Super, “that absolutely has to do with collective efforts for well-being by the workers, and companies could not prohibit that sort of a statement.”
According to Hirsch, complaining about your employer becomes a form of “mutual aid and protection,” when, for instance, one employee warns another about a safety issue, or about a manager who has behaved inappropriately. It’s in the best interest of workers to share that information, so that’s protected.
Even if the employer never enforces the rule, the fact that it exists can make current and former employees too nervous to exercise their right to complain, Hirsch says. “It’s not just that you can’t punish them for doing it, you also can’t create a rule that prevents them from doing it,” he adds.
Is this the end of non-disparagement and non-disclosure agreements?
The NLRB’s decision does not void all severance agreements and non-disparagement clauses, nor does it prohibit the creation of new ones. In the memo released after the case was reviewed, “the general counsel went out of her way to point out that there are legitimate needs for these that have nothing to do with worker well-being,” says Super.
According to Super, some non-disparagement clauses have been voided retroactively, but not all—and many will remain legally enforceable. The problem is with non-disparagement clauses that are “overly broad.”
Enforcement of this protection will depend on the circumstances of the violation. Some employers may be ordered to rescind the clause or agreement and some may be required to post a notice of their violation, says attorney Allyson Belovin, who litigates cases at the board. Both union and non-union employees can file a charge with the NLRB if they feel their severance agreement includes a confidentiality clause that’s too broad. “Prior to this decision, the board was allowing these kinds of clauses, so a charge would not likely be successful. Now, I would think, that would be different. The board is looking very closely at these kinds of clauses to make sure that they’re not infringing on people’s rights under the statute,” she says.
However, says Hirsch, it depends on employees reporting these violations. “For the NLRB to get involved in one of these cases, they have to know about it.”
He says workers can still expect to see non-disparagement clauses in employment contracts and severance agreements, but where some employers once lazily threw in a sweeping non-disparagement clause, they’ll have to rethink it.