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NLRB Considers Revision of Severance Decision

March 20, 2023

The National Labor Relations Board (NLRB) recently restricted the use of confidentiality and non-disparagement clauses within severance agreements.



In McLaren Macomb, et al., a Michigan hospital furloughed 11 union employees deemed “nonessential” after the COVID-19 pandemic forced the hospital to cease performing elective and outpatient surgeries. In June 2020, the hospital made the 11 furloughs permanent, and presented the employees with severance agreements, containing confidentiality and non-disparagement clauses.

The Biden-era NLRB has deemed the confidentiality and non-disparagement clauses in McLaren to be unlawful.


Under the Trump-era NLRB, such clauses would likely have been held as lawful, provided the decisions in Baylor University Medical Center and IGT d/b/a International Game Technology. It should be noted that the aforementioned decisions reversed long-settled precedent and replaced it with what the NLRB in McLaren refers to as “. . . a test that fails to recognize that unlawful provisions in a severance agreement proffered to employees have a reasonable tendency to interfere with, restrain, or coerce the exercise of employment rights under Section 7 of the Act.”


The NLRB’s decision in McLaren has explicitly overruled Baylor and IGT. In its decision it used the reinstated test to find the confidentiality and non-disparagement clauses at issue in McLaren to be unlawful.


The provisions at issue in McLaren would bar the hospital employees from providing information to the NLRB regarding the hospital’s interference with employees’ statutory rights. It would also preclude an employee from communicating with a union or board of directors, and prevent an employee from assisting another employee with issues concerning their employer.

It is likely that McLaren will be appealed, and even possible that this case arrives before the Supreme Court in due time.


If your business has any questions on this topic or any other matters, please do not hesitate to contact the attorneys at The Royal Law Firm at 413-586-2288.

Massachusetts’ Superior Court Judge Rules Recording in Workplace Admissible

February 19, 2025
The Massachusetts Superior Court found that Massachusetts’ wiretap statue does not bar employers from using allegedly illegally obtained recordings in civil proceedings. In a recent case, an employee claimed she was forced to resign. Plaintiff’s coworker recorded an argument between the Plaintiff and her supervisor without her consent and shared it with supervisors. The employee then sued for discrimination and retaliation, along with two counts for violation of the wiretap statute. Massachusetts is a two-party consent state but, in this case, it was found that the consent of only one party was needed because nothing in the Wiretap Statute bars the use of an allegedly illegally obtained communication in a civil proceeding. The court found that the provisions about the use of illegally obtained communications in evidence are limited to criminal trials. However, depending on the court, results may differ, as this recording was central to proving and/or disproving the Plaintiff’s claim, and as such, the recording was indispensable as a piece of evidence. Issues with unauthorized recordings have been arising all the time in civil proceedings because recording devices are everywhere, whether they be a cell phone, laptop or other recording device. This ruling is good for employers, as if there is an otherwise inadmissible recording that is made that disproves an employee’s claims, it can be admissible as evidence if meets the same scenario above. However, employers must be careful to use these recordings as they may be inadmissible and may not show the same thing that the employer believes in the court’s eyes. This being said, it is prudent to consult an attorney before utilizing a recording for any employment action or in legal action to avoid unwanted consequences. If your business has any questions on this topic or any other matters, please do not hesitate to contact the attorneys at The Royal Law Firm at 413-586-2288.

After the DEI Executive Order

February 14, 2025
What Are the Compliance Requirements for Private Employers?
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