"Employer and Employee agree to keep the existence and terms of this Agreement confidential and to not disclose its provisions to anyone.… Employer and Employee further agree not to take actions or make statements, written or oral, that would disparage or otherwise defame the goodwill or reputation of the other."
And they are why Mittelo has filed an unfair labor practice charge with the NLRB.
Crowder has a tough road to hoe defending that charge.
In McLaren Macomb, the NLRB held that garden-variety confidentiality and non-disparagement clauses — like those in the Crowder/Mittelo severance agreement — violate the National Labor Relations Act by unlawfully infringing upon the rights of employees to engage in protected concerted activity by limiting their ability to talk about terms and conditions of employment.
This case notwithstanding, I stand by my strong criticism of McLaren Macomb. An ex-employee is free to take a severance payment in exchange for the signed agreement (including the confidentiality and non-disparagement clauses) or not take the severance payment (and say whatever they want to whom). As these non-disparagement and confidentiality clauses are a condition of the receipt of a severance payment to which a non-employee is not otherwise entitled, I fail to see how the NLRA is implicated at all.
This issue is one of freedom of contract, not the National Labor Relations Act.
Nevertheless, because these issues are very much on the NLRB's radar, they merit your attention and consideration when you ask a non-supervisory employee to sign a severance agreement.
This case notwithstanding, I stand by my strong criticism of McLaren Macomb. An ex-employee is free to take a severance payment in exchange for the signed agreement (including the confidentiality and non-disparagement clauses) or not take the severance payment (and say whatever they want to whom). As these non-disparagement and confidentiality clauses are a condition of the receipt of a severance payment to which a non-employee is not otherwise entitled, I fail to see how the NLRA is implicated at all.
This issue is one of freedom of contract, not the National Labor Relations Act.
Nevertheless, because these issues are very much on the NLRB's radar, they merit your attention and consideration when you ask a non-supervisory employee to sign a severance agreement.