May 2023 Volume 5

OPERATIONS & MANAGEMENT

needs to be in the office. For undue hardship, this is a steep burden – steeper even for larger employers with more resources. 5. What is all the news about severance agreements?

that legal right. In agency guidance, the NLRB goes on to say that limited non-disparagement provisions or confidentiality provisions related to confidential info/trade secrets may be permissible, but it depends on the particular circumstance and that they really are limited. The one piece of potential good news for employers is that the agency also comments that it would not look to invalidate an entire agreement over a problematic clause, but just that particular provision(s). The agency guidance also seems to suggest disclaimers that the confidentiality and non-disparagement provisions are not intended to restrict the employee’s Section 7 rights under the NLRA could render the provisions lawful and enforceable.

Johanna Fabrizio Parker is a partner in Benesch's labor and employment group. Her practice involves representing and counseling management clients in a wide range of complex employment matters, including claims of discrimination, harassment, and retaliation brought under federal and state law, as well as wage and hour claims, and matters involving noncompetition agreements and trade secrets. She can be reached at jparker@beneschlaw.com.

The NLRB just issued a decision and then agency guidance about severance agreements. Specifically, the NLRB states that blanket confidentiality terms andnon-disparagement clauses are unfair labor practices. The theory is that the NLRA specifically provides that employees must be allowed to discuss wages, hours, and other terms and conditions of employment. These provisions, therefore, restrict

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