Legal Alert: Where Do We Go From Here?: Drafting Employee Severance Agreements After McLaren Macomb

On February 21, 2023, the National Labor Relations Board (“NLRB”) issued its Decision and Order  in McLaren Macomb and Local 40 RN Staff Council, Office and Professional Employees, International Union (OPEIU), AFL-CIO, Case 07-CA-263041, 372 NLRB No. 58, February 21, 2023 (“ McLaren Macomb”). In that case, the Board determined that proffering to employees a severance agreement with certain non-disclosure and confidentiality provisions amounted to an unfair labor practice under the National Labor Relations Act (“NLRA”). On March 22, 2023, NLRB General Counsel Jennifer A. Abruzzo issued a  "Memorandum GC 23-05 “Guidance in Response to Inquiries about the McLaren Macomb Decision” (the “Abruzzo Memorandum”) addressing several questions about the Board’s action. It is clear from the Decision and Order and the Abruzzo Memorandum that the McLaren Macomb decision had broad ranging implications for employers and employees. Not only does the Board consider its decision retroactive, calling into question the enforceability and legality of existing severance agreements, it raises issues as to the permissibility or an array of restrictive covenants commonly included in several agreements, even when they do not arise in the context of an NLRB proceeding, such as in discrimination cases.  We will address the implications of McLaren Macomb and strategies for responding to this important decision in an upcoming Griesing Mazzeo Law Legal Alert.