Opinion Feel free to spill the beans, ex-employees. Your former boss can’t stop you.
That’s essentially the ruling made by the National Labor Relations Board in February, which its general counsel, Jennifer A. Abruzzo, recently clarified in a nonbinding memorandum supplementing the decision.
The board held that broad nondisparagement and confidentiality provisions violate Section 7 of the National Labor Relations Act, which guarantees employees “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection … [or] to refrain from any or all such activities.” To exercise those rights, employees must be able to share information about their workplace.
The NLRB decision said workers’ rights “are not limited to discussions with coworkers, as they do not depend on the existence of an employment relationship between the employee and the employer, and the Board has repeatedly affirmed that such rights extend to former employees.” The ability to talk with ex-employees protects “employee efforts to improve terms and conditions of employment or otherwise improve their lot as employees through channels outside the immediate employee-employer relationship.”
The ruling is surprisingly broad. Even if you are not a member of any union, the ruling applies so long as you were not a supervisor. (Supervisors generally are not protected under core provisions of federal law pertaining to unions.)
The board further held that it is illegal to offer such agreements, even if the employee declines to sign it, since this would chill employees from exercising their protected rights. The board wrote in its ruling:
The nondisparagement provision on its face substantially interferes with employees’ Section 7 rights. Public statements by employees about the workplace are central to the exercise of employee rights under the Act. Yet the broad provision at issue here prohibits the employee from making any “statements to [the] Employer’s employees or to the general public which could disparage or harm the image of [the] Employer” — including, it would seem, any statement asserting that the Respondent had violated the Act (as by, for example, proffering a settlement agreement with unlawful provisions). This far-reaching proscription — which is not even limited to matters regarding past employment with the Respondent — provides no definition of disparagement that cabins that term. … Instead, the comprehensive ban would encompass employee conduct regarding any labor issue, dispute, or term and condition of employment of the Respondent.
Moreover, the decision is retroactive, Abruzzo explained. That means “while an unlawful proffer of a severance agreement may be subject to the six-month statute of limitation … maintaining and/or enforcing a previously-entered severance agreement with unlawful provisions that restrict the exercise of Section 7 rights continues to be a violation and a charge.” In other words, an illegal agreement signed weeks or even years ago is not enforceable.
All of this spells bad news for employers accustomed to buying silence from former workers. Indeed, the current administration has been generous preserving ex-employees’ freedom of speech and employment. The NLRB case follows a proposal by the Federal Trade Commission to bar noncompete agreements, which often accompany nondisparagement restrictions. Together, these two moves would drastically curtail an employer’s ability to control ex-employees, to the delight of union organizers, the media and business competitors.
In her memorandum, Abruzzo does leave a narrow opening for employers. “Lawful severance agreements may continue to be proffered, maintained, and enforced,” she writes, “if they do not have overly broad provisions that affect the rights of employees to engage with one another to improve their lot as employees. This includes the rights of employees to extend those efforts to channels outside the immediate employee-employer relationship, such as through accessing the Board, their union, judicial or administrative or legislative forums, the media or other third parties.”
Questions abound as to how narrow provisions to silence employees must be to survive board scrutiny. Must it be limited to the immediate aftermath of employment? Must it allow an ex-employee to hold a news conference? Confidentiality and nondisparagement agreements that are limited in duration and scope could theoretically survive, but this is a somewhat theoretical debate. Such agreements aren’t of much use unless they bottle up employees completely.
For all intents and purposes, then, the vast majority of these agreements will be unenforceable. And many employers aren’t going to find it worthwhile to limit the number of people with whom employees can confide or the context in which they can convey information. Once information is available to a few, it’s generally impossible to keep it under wraps.
Despite the NLRB ruling, employees who want to share their experiences and opinions must still be wary of committing other torts, such as disclosure of trade secrets or defamation. But aside from that, the ruling appears to give former employees wide berth to tell the world about their work experiences.
Abusive employers — including those who have violated state and federal law — should be on notice.
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