The National Labor Relations Board’s decision in McLaren Macomb holds that an employer violates federal labor law the moment it offers a severance agreement containing broad confidentiality or non-disparagement clauses that would restrict an employee’s rights under Section 7 of the National Labor Relations Act. The ruling issued in February 2023 remains binding Board precedent in 2026, though the practical enforcement climate has cooled since the change in administration. If you have been handed a severance agreement, or are being pressured about one you signed years ago, the decision still gives you a legal argument.
The Two Clauses the Decision Targets
The case involved furloughed hospital workers whose severance packages contained both a confidentiality clause and a non-disparagement clause. The Board found that each clause independently violated Section 8(a)(1) of the Act because it would tend to discourage workers from exercising Section 7 rights: organizing, discussing working conditions, assisting coworkers, or cooperating with government investigators.1National Labor Relations Board. Board Rules that Employers May Not Offer Severance Agreements Requiring Employees to Broadly Waive Labor Law Rights
Two categories of language are the problem:
- Broad confidentiality clauses that forbid a departing worker from disclosing the existence of the agreement or any of its terms. These sweep in conversations with former coworkers, unions, and government agencies.
- Broad non-disparagement clauses that bar any negative or critical statement about the employer. When written sweepingly, they cover statements about working conditions, safety, and labor practices, which are exactly the topics Section 7 protects.
Section 7 gives employees the right to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.”2Office of the Law Revision Counsel. 29 USC 157 – Right of Employees as to Organization, Collective Bargaining, Etc. Those rights do not end when the job ends. Section 8(a)(1) then makes it an unfair labor practice for an employer “to interfere with, restrain, or coerce employees in the exercise of” those rights.3Office of the Law Revision Counsel. 29 USC 158 – Unfair Labor Practices The Board’s key move in McLaren Macomb was to hold that the violation occurs when the employer presents the agreement. You do not have to sign it for the employer to be in the wrong.1National Labor Relations Board. Board Rules that Employers May Not Offer Severance Agreements Requiring Employees to Broadly Waive Labor Law Rights
Who the Ruling Covers
The NLRA protects “employees” under Section 2(3), which reaches most private-sector workers whether or not the workplace is unionized. Several groups are excluded by statute: agricultural laborers, domestic workers in a private home, anyone employed by a parent or spouse, independent contractors, supervisors, and workers covered by the Railway Labor Act, which means most airline and railroad employees.4Office of the Law Revision Counsel. 29 U.S. Code 152 – Definitions Federal, state, and local government employees are also outside the NLRA.
The supervisor exclusion trips people up. If you genuinely direct other employees’ work, recommend hires or firings, or impose discipline using independent judgment, you likely count as a statutory supervisor no matter what your title says. The Board looks at authority actually exercised, not job titles. Most hourly workers and non-managerial salaried employees are covered.
Independent contractor status removes coverage as well. The Board uses a common-law agency test that focuses on how much control the employer has over the manner and means of the work.
What Narrower Language Can Still Do
The decision does not ban confidentiality and non-disparagement clauses outright. It bans the broad versions. A confidentiality clause tied to genuine trade secrets or proprietary financial data, for a limited period, and drafted so it does not touch the worker’s right to discuss working conditions, can survive. A non-disparagement clause limited to statements that are knowingly false or made with reckless disregard for the truth — roughly the defamation standard — is far less likely to run afoul of Section 7 than one that prohibits “any negative statements.”
The now-rescinded General Counsel Memo 23-05 had suggested that employers include an affirmative statement of Section 7 rights in the agreement so there could be no ambiguity about what was not being restricted.5NLRB Research. NLRB Memorandum GC 23-05 – Guidance in Response to Inquiries about the McLaren Macomb Decision The memo also warned that a generic savings clause saying “nothing in this agreement restricts your legal rights” might not cure an otherwise overbroad provision. Even without the memo in force, those remain sensible drafting principles.
Separately, the Defend Trade Secrets Act requires any agreement governing trade secrets to include a notice telling the employee they are immune from liability for disclosing trade secrets in confidence to a government official or attorney to report a suspected legal violation. An employer that omits this notice loses the right to recover punitive damages or attorney fees in a later trade-secret suit against the employee.6Office of the Law Revision Counsel. 18 U.S. Code 1833 – Exceptions to Prohibitions
Where Enforcement Stands Now
McLaren Macomb has not been overturned. No court has vacated it, and administrative law judges continue to apply it in pending cases. What has changed is the machinery behind the decision.
General Counsel Jennifer Abruzzo, who had championed aggressive enforcement, was fired on January 27, 2025. Her successor issued GC Memo 25-05, rescinding a batch of Biden-era guidance memos including GC 23-05, which had laid out the decision’s retroactive reach and recommended compliance steps.7National Labor Relations Board. GC 25-05 Rescission of Certain General Counsel Memoranda General Counsel memos are internal guidance, not binding law, so the rescission did not change the legal standard. It did signal a lower likelihood that the General Counsel’s office will actively pursue new complaints on this theory or push for expansive readings.
The Board itself regained a quorum in January 2026 when two new members were sworn in.8National Labor Relations Board. James Murphy and Scott Mayer Sworn in as Board Members Some employers have signaled they will seek reversal at the Board level, and a reconstituted Board could theoretically overrule the decision the way the 2023 Board overruled the 2020 precedent that preceded it. Until that happens, the rule stands. If you are reviewing an agreement right now, treat the restrictions as current law and expect a less aggressive enforcement posture than existed in 2023 and 2024.
Agreements Signed Before February 2023
Before GC Memo 23-05 was rescinded, it stated plainly that “Board cases are presumed to be applied retroactively and this decision has retroactive application.”5NLRB Research. NLRB Memorandum GC 23-05 – Guidance in Response to Inquiries about the McLaren Macomb Decision Under that guidance, an employer trying to enforce an overbroad clause in an older agreement could commit a fresh unfair labor practice, even if the original signing fell outside the six-month statute of limitations for filing a charge.
The rescission removed the explicit guidance but not the underlying principle. Board decisions generally apply retroactively as a matter of administrative law. A worker who signed a restrictive agreement years ago and is now being threatened with enforcement still has a solid argument that the overbroad clauses are unenforceable. Pressing the argument may take more persistence than it did two years ago.
Filing an Unfair Labor Practice Charge
If you have received a severance agreement with the kind of clauses McLaren Macomb targets, or a former employer is trying to enforce one against you, you can file an unfair labor practice charge with the NLRB. The deadline is six months from the date of the alleged violation, meaning six months from the moment the employer offered the problematic agreement or tried to enforce a prohibited clause.9Office of the Law Revision Counsel. 29 U.S. Code 160 – Prevention of Unfair Labor Practices
You file NLRB Form 501, which asks for the employer’s name and address, the type of business, the number of workers at the site, and a short description of what the employer did.10National Labor Relations Board. Charge Against Employer (Form NLRB-501) It goes to the NLRB Regional Office covering the location where the violation occurred, and the Board accepts filings through its electronic portal.11National Labor Relations Board. Filing You do not need a lawyer to file, though consulting one before you do is worth the time, especially with the current enforcement climate.
What a Remedy Looks Like
When the Board finds a violation, the standard remedy is a cease-and-desist order. The employer has to stop using the unlawful language and must notify all affected current and former employees that the restricted provisions are void and unenforceable.1National Labor Relations Board. Board Rules that Employers May Not Offer Severance Agreements Requiring Employees to Broadly Waive Labor Law Rights That notice is the point: it undoes the chill by making clear to every affected worker that they can discuss working conditions and help fellow employees without fear of retaliation.
An unlawful clause usually does not sink the rest of the agreement. Most severance packages contain a severability provision, so the illegal terms get struck while the actual severance payment stays in place. Workers keep the money and regain the rights.
The Board has also tried to expand its remedial toolkit. In Thryv, Inc. (2023), it held that it could award consequential damages for foreseeable financial harms caused by unfair labor practices, such as credit card interest or penalties on early retirement withdrawals. Federal courts have split. The Third and Fifth Circuits struck the remedy down as exceeding the NLRA’s equitable framework, while the Ninth Circuit upheld it.12Justia. Harvard Maintenance v. National Labor Relations Board Until the Supreme Court resolves the split, availability depends on which federal circuit covers the workplace.
If You Are 40 or Older, OWBPA Adds More Rules
Where a severance agreement asks a worker 40 or older to waive claims under the Age Discrimination in Employment Act, the Older Workers Benefit Protection Act imposes requirements that sit on top of the McLaren Macomb analysis. These apply regardless of how NLRB enforcement evolves.
- The agreement must advise you, in writing, to consult an attorney before signing.13eCFR. 29 CFR 1625.22 – Waivers of Rights and Claims Under the ADEA
- You must have at least 21 days to review the agreement. If the waiver is part of a group layoff or exit-incentive program, the minimum is 45 days.14eCFR. Waivers of Rights and Claims Under the ADEA
- After signing you have at least seven days to revoke, and the agreement cannot take effect until that window closes. Neither side can shorten it.13eCFR. 29 CFR 1625.22 – Waivers of Rights and Claims Under the ADEA
- In a group termination, the employer has to tell you which job titles and age groups are included in the program and which are not, broken down by individual age rather than age bands.
Skip any of those steps and the employer has not obtained a “knowing and voluntary” waiver, which means the age-discrimination release is unenforceable even after you signed. Miss the seven-day revocation window yourself, though, and the waiver stands.