Is the Labor Relations Board Retroactive? Employee-side attorney explains how the 2020 ruling leaves no severance negotiations open door to workers’ rights
There are a number of questions raised about the decision by the National Labor Relations Board to forbid employers from forcing laid off workers to sign confidentiality and non-disparagement clauses if they wish to get a job.
The ruling from the labor board this week is effective immediately. That means employers must review — and, if necessary, revise — their severance agreements to ensure they don’t include overly broad language that would restrict workers’ rights in the two ways the board ruling indicates.
It is not uncommon for the decision made by the NLRB to be retroactive unless it would be unfair to the employer or cause an injustice, according to an employee-side attorney. In this latest case, Healey said, it’s fair to assume that it might not be because employers have been offering severance agreements in recent years based on a 2020 NLRB decision that was effectively overturned by the board’s latest ruling.
“Companies are definitely incentivized to silence their departing employees…[because it helps them keep] all the skeletons in the closet,” employment attorney Alex Granovsky told CNN via email.
The decision opens the door. While sunlight is best medicine, and exposure to it should bring better companies, this decision could change the dynamics of a severance negotiation.
“This board is signaling and reminding employers that the NLRB applies to employers regardless of whether workers are unionized,” said Andrew Herman, an associate in the labor & employment practice at law firm Blank Rome LLP.
Federal, state and local government agencies, including public schools, libraries and parks, are not under NLRB’s jurisdiction. Neither are railways and airlines.
Some categories of workers are excluded from being covered by the ban because they are not part of the National Labor Relations Act. They include managers with authority to hire, fire, and discipline workers even if their company is subject to the rule of the National Labor Relations Board.
CNN spoke to lawyers about the possibility of the labor board applying it retroactively after someone files a charge for alleged labor violations that were done in the past six months. Normally there is a six-month window akin to a statute of limitations to bring an alleged violation to the board’s attention.
Jon Hyman: Protecting Employees from Disclosing Trade Secrets in an Employer’s Best Interest and Preventing Litigation
According to Herman, your employer may still want you not to reveal trade secrets that protect their business interests.
They offer protection from lawsuits and the like if they have trade secrets revealed or if there are claims against them.
I want the employee to give me something in return. Jon Hyman is a management side attorney and chair of the employment and labor practice at Wickens Herzer Panza.