SimplyHR | Employment & Labor Blog 

Jennifer Abruzzo, general counsel for the National Labor Relations Board (NLRB), issued a memorandum on May 30, 2023, finding that except in limited special circumstances, non-competition agreements – including the act of merely giving employees non-competition agreements or maintaining existing ones – violate Sections 7 and 8 of the National Labor Relations Act (Act). The memorandum states, “Except in limited circumstances, I believe the proffer, maintenance, and enforcement of such agreements violate Section 8(a)(1) of the Act.”

The National Labor Relations Board (NLRB) issued a decision on February 21, 2023, that restored pre-Trump era precedent and prohibits employers from offering employees severance agreements that contain broad confidentiality and non-disparagement provisions.

In the case at issue, McLaren Macomb and Local 40, RN Staff Council Office and Professional Employees International Union, AFL-CIO, 372 NLRB No. 58 (2023) (McLaren), the issue was whether Michigan hospital operator McLaren Macomb violated the National Labor Relations Act (NLRA) when it offered severance agreements with broad confidentiality and non-disparagement requirements to 11 employees furloughed because of the COVID-19 pandemic.

We are finally moving past the plethora of pandemic-era employment laws that riddled this blog over the past two years. However, not all will be quiet in 2023, as the breadth of pending U.S. Supreme Court cases and issues agencies are reviewing is wide and has the potential to disrupt several industries. This recap and forecast highlights a few of those topics.

Since June 2010, contractors and subcontractors with contracts that result from federal agency solicitations issued on or after June 21, 2010, have been required to display the Department of Labor (DOL) poster notifying employees of their rights under the National Labor Relations Act (NLRA). On May 16, 2019, the DOL made the following updates to this employer-required poster:

1. a new telephone number for the National Labor Relations Board; and
2. new contact information for individuals who are deaf or hard of hearing.

A National Labor Relations Board administrative law judge in February struck down two provisions in a severance agreement relating to confidentiality and participation in third-party claims. In Baylor University Medical Center, the administrative law judge (ALJ) concluded that these provisions violated the National Labor Relations Act (NLRA) because they had the effect of restricting protected conduct and were not justified by any countervailing concerns. The ALJ relied on the board’s recent Boeing Company decision that outlined a new framework for reviewing employer policies.

The National Labor Relations Board (NLRB) on Dec. 14, 2017, overturned significant prior precedent related to its position governing workplace policies and handbooks and its joint employer standard. These decisions are significant because they reversed two previous standards that had caused numerous headaches for employers.

On May 26, 2016, the U.S. Court of Appeals for the Seventh Circuit issued its decision in Lewis v. Epic Systems, agreeing with the National Labor Relations Board’s position that mandatory arbitration agreements that prohibit employees from bringing class or collective claims violate the National Labor Relations Act. It was the first appellate court decision to accept the board’s stance, breaking with the Fifth Circuit and teeing up the final resolution of the validity of class waivers for the U.S. Supreme Court.

The National Labor Relations Board has long held employers cannot stifle employee communications about the conditions of their employment in general handbook confidentiality clauses, but on Aug. 27, the NLRB took that prohibition one step further.

In a 2-1 decision, the board ruled The Boeing Co.’s confidentiality restriction for employees under HR investigations violated the National Labor Relations Act. (Boeing Co., 2015 BL 278958, 362 N.L.R.B. No. 195, 8/27/15.)

Reversing existing Board precedent, the National Labor Relations Board (“Board” or “NLRB”) recently ruled that employers that allow employees access to work e-mail systems must presumptively allow their employees to use those e-mail systems for union activity during non-work time. This reversal of long-standing precedent has potentially far-reaching consequences and, at minimum, will require both union and non-union employers to review their communications policies to ensure compliance with the National Labor Relations Act (“NLRA”).