https://www.washingtonpost.com/opinions/2023/04/02/nlrb-ruling-nondisparagement-agreements/
From The Washington Post (April 2, 2023):
“Feel free to spill the beans, ex-employees. Your former boss can’t stop you.”
By Jennifer Rubin
"... Now, most such provisions threatening to sue workers if they blab are worthless. Those who signed severance agreements promising not to bad-mouth their employers or reveal information about their employment can rest easy: You’re free to share your stories.
That’s essentially the ruling made by the National Labor Relations Board in February, which its general counsel, Jennifer A. Abruzzo, recently clarified in a nonbinding memorandum supplementing the decision.
The board held that broad nondisparagement and confidentiality provisions violate Section 7 of the National Labor Relations Act, which guarantees employees “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection … [or] to refrain from any or all such activities.” To exercise those rights, employees must be able to share information about their workplace.
The NLRB decision said workers’ rights “are not limited to discussions with coworkers, as they do not depend on the existence of an employment relationship between the employee and the employer, and the Board has repeatedly affirmed that such rights extend to former employees.” The ability to talk with ex-employees protects “employee efforts to improve terms and conditions of employment or otherwise improve their lot as employees through channels outside the immediate employee-employer relationship.”
The ruling is surprisingly broad. Even if you are not a member of any union, the ruling applies so long as you were not a supervisor. (Supervisors generally are not protected under core provisions of federal law pertaining to unions.)
The board further held that it is illegal to offer such agreements, even if the employee declines to sign it, since this would chill employees from exercising their protected rights. The board wrote in its ruling:
The nondisparagement provision on its face substantially interferes with employees’ Section 7 rights. Public statements by employees about the workplace are central to the exercise of employee rights under the Act. Yet the broad provision at issue here prohibits the employee from making any “statements to [the] Employer’s employees or to the general public which could disparage or harm the image of [the] Employer” — including, it would seem, any statement asserting that the Respondent had violated the Act (as by, for example, proffering a settlement agreement with unlawful provisions). This far-reaching proscription — which is not even limited to matters regarding past employment with the Respondent — provides no definition of disparagement that cabins that term. … Instead, the comprehensive ban would encompass employee conduct regarding any labor issue, dispute, or term and condition of employment of the Respondent...."