NLRB strikes down Trump-era severance agreement rulings

Terminated staff members can not be prohibited in severance agreements from producing disparaging statements about their former employer or disclosing the agreement’s conditions, the Countrywide Labor Relations Board ruled Tuesday in striking down a pair of conclusions throughout the Trump administration.

An employer attorney stated the ruling was expected in mild of the change in administration.

The situation was filed by a union on behalf of 11 personnel of McLaren Macomb, a Mount Clements, Michigan, hospital, who ended up initially briefly, then permanently, furloughed in response to the COVID-19 pandemic. The case is McLaren Macomb and Community 40 RN Employees Council, Place of work and Experienced Employees Global Union, AFL-CIO.

The conclusion overturned a 3-1 ruling issued by a Republican-dominated board in March 2020 in Baylor College Professional medical Middle and Dora S. Camancho in which it held that a non-disparagement provision was lawful.

That ruling was affirmed by the board in a November 2020 ruling involving a London-centered business in IGT d/b/a International Game Engineering and Intercontinental Union of Working Engineers Regional Union 501, AFL-CIO.

Tuesday’s ruling, which partly overturned an administrative judge’s final decision, was authorized by the NLRB by a vote of 3-1,  with Republican Marvin E. Kaplan dissenting. 

The NLRB said in a assertion that the Baylor and IGT choices “abandoned prior precedent” and that “simply offering staff a severance settlement that necessitates them to give up their rights” violates the Countrywide Labor Relations Act‘s Part 7, which ensures staff the right to self-organize.

“The board noticed that the employer’s give is by itself an try to deter workers from doing exercises their statutory rights, at a time when workforce could truly feel they need to give up their rights in buy to get the advantages delivered in the settlement,” the statement stated.

“It’s extensive been understood by the Board and the courts that businesses can not ask specific employees to select concerning getting rewards and training their rights”  under the NLRA, it mentioned.

Mr. Kaplan’s dissent stated “Baylor and IGT were seem, pragmatic decisions thoroughly steady with the (NLRA), and colleagues have unsuccessful to establish adequate grounds” for overturning them.

Joshua H. Viau, regional running associate with Fisher Phillips LLP in Atlanta, explained, “We’ve viewed this a person coming. There is heading to be far more scrutiny below this board of all worker guidelines and techniques and language,” which will “swing the pendulum back to wherever it was in the pre-Trump era.”

Mr. Viau explained companies’ response to the rule “really is dependent on the employer’s chance tolerance,” mainly because the selection “doesn’t give a entire whole lot of insight” as to how to progress.

“I never always think” that companies have to have to reissue prior agreements,  he stated, “but I do think that it is prudent to revise language in the severance agreements heading forward to at the very least place some disclaimer in position to get some defense that way.”


Christopher Lewis

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