The NLRB's decision addressing non-disparagement provisions and its General Counsel's recent follow-on advisory about the scope of that decision demand the attention of businesses that routinely employ these provisions.
We previously wrote about the decision's impact and the advisory the General Counsel issued on its heels as guidance. Employers should take these developments into account to understand the legal impact of overbroad non-disparagement and confidentiality provisions.
But as my colleague Nikki Rivers and I noted in a recent piece we wrote for Bloomberg Law, identifying whether or not an employee is a "supervisor" under the NLRA may be an important question to answer when preparing these provisions. Rights under NLRA Section 7, which was the section the NLRB construed that restricts overbroad provisions, do not by this Section's terms, apply to supervisors. The NLRB concluded in its recent General Counsel's advisory, however, that Section 7 rights may apply to supervisors who allege employer retaliation for the supervisor's refusal to participate in requiring non-supervisory employees to sign agreements that violate the NLRA or restrict supervisors from participating in NLRB proceedings.
So where does this leave employers? Understanding who exactly is the "boss" and customizing agreements for those individuals is one approach. Another approach is a one-size-fits all policy that requires careful review of provisions that restrict what an employee can and cannot say (or do) about their employment experience.
Whatever approach an employer takes, these legal developments should remind all of us that a systematic and careful review of employment agreements and policies is sound management practice.