() — If a company fires you, they will likely offer you severance pay, but only if you agree to abide by certain restrictions.
One of them is usually to keep silent.
But the US National Labor Relations Board (NLRB) warned companies this week that they can no longer silence laid-off employees in two very specific ways that the Board says violate rights of employees under sections 7 and 8(a)(1) of the National Labor Relations Law.
Employers can no longer include a broadly worded confidentiality clause that requires you to remain silent about the terms of your termination agreement. They also cannot include a non-disparagement clause that prohibits you from discussing the conditions of your employment with third parties.
“A termination agreement is unlawful if it prevents an employee from assisting co-workers in labor matters related to their employer and from communicating with others, including a union and the Board, about their employment,” the Board wrote in his decision this Tuesday.
The ruling is a reversal of what Trump-era NLRB members had decided in an earlier case were legal restrictions on employees as a condition of receiving severance pay.
With the exception of railroads and airlines, US business employers are subject to the authority of the NLRB.
Although this week’s NLRB decision can be appealed, the ruling takes effect immediately. This means that companies must review – and, if necessary, modify – their severance agreements to ensure that they do not include excessively broad language that restricts the rights of workers in both senses indicated in the ruling of the Board US National Labor Relations
The Board’s decision will return some power to employees, but how it plays out remains to be seen.
“Certainly, companies are incentivized to silence their employees who are leaving… [porque les ayuda a mantener] all the skeletons in the closet,” labor lawyer Alex Granovsky told by email.
“This decision opens the door. While, on the one hand, sunlight is the best medicine, and more exposure should lead to better companies, this decision could also change the dynamics of a layoff negotiation.”
— ‘s Chris Isidore contributed to this report.
