Striking the Balance: Navigating Confidentiality and Non-Disparagement Agreements in Severance Deals Post McLaren Macomb

In today’s rapidly evolving business landscape, employment agreements have become more intricate, particularly in the context of severance arrangements. Confidentiality and non-disparagement clauses have long been a common feature in these agreements, designed to protect a company’s interests. However, a significant shift occurred with the National Labor Relations Board’s (NLRB) decision in the McLaren Macomb case, which has implications for the enforceability and scope of such clauses.

Understanding Confidentiality Agreements

Confidentiality agreements are a standard inclusion in severance agreements, aiming to protect sensitive company information from being disclosed by departing employees. These agreements often encompass a broad range of data, including trade secrets, financial information, proprietary technologies, and business strategies. However, there has been an ongoing debate about the potential overreach of confidentiality clauses, particularly when they are worded too broadly.The NLRB’s McLaren Macomb decision added a new layer of complexity to this debate. The case involved a nurse who was presented with a severance agreement containing a confidentiality clause that prohibited the disclosure of “confidential information and trade secrets.” The NLRB ruled that the clause was overly broad and could impede the employee’s rights under the National Labor Relations Act (NLRA), which grants employees the right to discuss workplace conditions and terms of employment, even after their employment ends.

Implications of the McLaren Macomb Decision

The NLRB’s decision in McLaren Macomb serves as a reminder to employers that confidentiality clauses must be carefully crafted to avoid infringing on employees’ rights protected by the NLRA. The ruling emphasized that employees must retain the ability to discuss matters related to their working conditions, wages, and terms of employment, even if they have signed a confidentiality agreement as part of their severance package.

The key takeaway from the McLaren Macomb decision is that confidentiality clauses should be narrowly tailored to focus solely on protecting legitimate business interests, such as trade secrets and proprietary information. Language that could reasonably be interpreted as hindering employees’ NLRA rights should be avoided. This ruling serves as a cautionary tale for companies to review and revise their existing confidentiality agreements to ensure compliance with the NLRA.

Non-Disparagement Agreements: Balancing Interests

Non-disparagement agreements, another common feature of severance agreements, are intended to prevent departing employees from making negative statements about their former employer. These clauses are aimed at protecting a company’s reputation and goodwill, While the intention behind these clauses is understandable, they also come under scrutiny for their potential to silence employees’ ability to speak out about workplace harassment, discrimination, or other unfair practices.

The NLRB’s Mclaren Macomb decision indirectly impacts non-disparagement clauses as well. While the decision directly addressed confidentiality clauses, it reinforced the principle that employees must be able to engage in protected discussions about workplace conditions and terms of employment. This suggests that non-disparagement clauses must also be carefully crafted to avoid infringing on employees’ rights protected by the NLRA.

Crafting Enforceable and Fair Agreements

In light of the NLRB’s Mclaren Macomb decision, employers must approach the drafting of severance agreements with increased caution. Here are some best practices to consider:

  1. Specificity: Ensure that confidentiality and non-disparagement clauses are specific and narrowly tailored to protect legitimate business interests without impeding employees’ NLRA rights.
  2. Clear Language: Use clear and unambiguous language to avoid any potential misinterpretations that could undermine the agreement’s enforceability.
  3. Exceptions: Include language explicitly stating that the agreement does not prohibit employees from engaging in discussions protected by the NLRA, such as discussing wages, working conditions, and terms of employment.
  4. Legal Review: Have employment agreements, including severance agreements, reviewed by legal professionals well-versed in employment law to ensure compliance with the NLRA and other applicable laws.
  5. Employee Understanding: Provide employees with ample time to review the agreement and seek legal advice before signing. This will help ensure that they fully understand the implications of the agreement.

The Role of Legal Expertise

The Mclaren Macomb decision has reshaped the dynamics of confidentiality and non-disparagement agreements, underscoring the need for legal expertise. A lawyer’s interpretation of the decision’s nuances, their guidance in drafting agreements that align with its mandates, and their ability to provide clarity in uncertain scenarios are invaluable. In this new era defined by McLaren Macomb, a lawyer isn’t just an advisor; they’re an essential partner in upholding rights and interests. If you are an employer seeking compliant agreement drafts or reevaluating your severance package, our Catalyst Legal consultant can tailor our expertise to your unique needs. Contact Catalyst Legal today and safeguard your future with confidence.


Get In Touch

We will be in touch shortly to see how we can assist your business with their legal needs.