On February 27, 2023, the General Counsel of the National Labor Relations Board (“NLRB”) released an advice memorandum (“Memorandum”) on the topic of an employee discussing issues of racial discrimination in the workplace and on social media. The General Counsel determined that discussions of racial discrimination in the workplace are protected concerted activity under Section 7 of the National Labor Relations Act (“NLRA”), and therefore, the NLRA protects employees who engage in such discussions from employer retaliation. This determination is similar to a General Counsel advice memorandum from January 20, 2016, in which the General Counsel concluded that an employee’s “discussion of alleged racial discrimination in terms and conditions of employment was protected under the Board’s doctrine of ‘inherently concerted’ activity.” However, the Memorandum issued on February 27 seemingly expands that standard to employees who discuss racial discrimination regardless of whether the employee discussions are related to racial discrimination occurring in the workplace or made in connection to the terms and conditions of employment.
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NLRB Rules Overly Broad Confidentiality and Non-Disparagement Clauses are Unlawful
By Amy Cann & Vineesha Sow on
Posted in Employers
In a recent decision, the National Labor Relations Board (“Board”) ruled that overly broad confidentiality and non-disparagement clauses in severance agreements are unlawful. In fact, even the mere offering of a severance agreement with these clauses is unlawful. Employers typically include these clauses in severance agreements either to restrict an employee from discussing the severance terms with coworkers or to restrict the employee from publishing false or defamatory comments about the employer following the employee’s departure from the company. The Board reasoned that these two clauses, if drafted too broadly, might cast too wide a net and have a “chilling effect” on an employee’s exercise of their protected rights under the National Labor Relations Act (“Act”). This ruling applies to severance agreements offered in union and non-union private-sector workplaces.
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