The National Labor Relations Board ten days ago declared it an unfair labor practice, when offering a severance agreement to an employee, to include in that offer either a broad confidentiality provision or a broad non-disparagement agreement, which terms have been standard in such documents.

While the legal basis for this ruling is rooted in a provision of the National Labor Relations Act which ensures free communication among employees, and thus this ruling does not affect exempt employees (management and certain other senior-level workers), this radical departure from long-standing practice is further indication of the general approach of appointees of the current administration: to protect workers at all levels against pressure from employers.

(Reference is made to our post of late January which reported that the Federal Trade Commission declared general non-comps and non-hiring provisions upon hiring to be illegal (though employment lawyers do see some ability to craft limited restrictions based on specific facts, so that ruling is a story in progress).

In  moving away from Trump-era regulation, the NLRB is seeking to permit former employees to assist coworkers with workplace issues, terms of employment and disputes.  The ruling further makes clear that the mere offering of a noncompliant severance agreement is unlawful, even if rejected by the employee.

If I may be allowed an observation about lawyering: the changes in Federal administration these days sometimes create wide policy swings on the regulatory level (not just labor; look at anti-trust, SEC, etc.)  which whipsaw businesses and drive management to seek counsel from attorneys to readjust standard practices.  No doubt these swings in policy reflect the increased differences in policy held by the political parties, and the stridency with which adherence to those policies is sought both within and outside the government structures.  Current politics may well be described as the “Perpetual Full Employment of Lawyers Program.”