03/20/2024: The NLRA Protects Former Employees Too.

The potentially radical implications of Briggs.

1. Region 32-Oakland Secures Settlement Requiring Lucid to Rescind Unlawful Severance Agreement Language (National News). In February of last year, the Board issued its McLaren Macomb decision, which held that it is an unfair labor practice (ULP) for employers to offer severance agreements that require workers to waive their rights under the National Labor Relations Act (NLRA). In that case, the employer offered a severance agreement that contained non-disparagement and confidentiality clauses that limited workers rights to engage in speech that is protected by Section 7 of the NLRA. The NLRB is highlighting this settlement with the employer Lucid because, in it, the employer agreed to abide by the ruling in McLaren Macomb and remove the confidentiality clause from its severance agreement. The McLaren Macomb case itself is still being challenged in the Sixth Circuit.

2. Crescent Paper Tube Company, 10-RC-336804 (Regional Election Decision). The employer and the union disagreed on the times and date that the union election should be held. The regional director, which essentially has total discretion over such questions, picked a time and date.

In Briggs (1947), the Board held that the term “employee” as defined in Section 2(3) of the NLRA “covers, in addition to employees of a particular employer, also employees of another employer, or former employees of a particular employer, or even applicants for employment.” More provocatively, Briggs states that the term “employee” also covers “members of the working class generally.” Briggs remains good law on the meaning of the word “employee” and is still regularly cited.

This broad definition of “employee” has interesting implications, including that an employer can be found to have committed unfair labor practices against individuals that it does not currently employ. This is the central point that drives the McLaren Macomb decision. The right to engage in concerted activities for mutual aid and protection is enjoyed by former employees just as it is enjoyed by current employees. Thus, severance agreements that restrict former employees from exercising their rights — e.g. by preventing them from revealing or criticizing the company’s working conditions — must be understood as violating Section 8(a)(1) of the NLRA.

Personally, I think that legal practitioners should be more aggressive in taking advantage of the fact that NLRA rights apply to former employees in this way. If approached carefully, I think you could use this particular bit of law to invalidate a lot of non-disclosure agreements (NDAs) that occur in the labor and employment context. Doing so would not just be clever lawyering. It would also be in the spirit of the NLRA, which has as its core premise that workers should be free to coordinate, and thus communicate, with one another about employers and working conditions. Most NDAs entered into in settlement, severance, or post-employment agreements explicitly prevent this and should be understood as violating Section 8(a)(1) of the NLRA.