Severance agreements often include a host of terms that the former employee must comply with in order to receive their severance. Many of these agreements include terms that forbid the individual from criticizing the company after they leave. These were once commonplace, but labor rulings have changed that assumption.
The McLaren Macomb decision by the National Labor Relations Board was handed down in 2023. The board noted that employers may be violating federal labor law when they include non-disparagement or confidentiality clauses in the severance agreements if those clauses interfere with specific rights.
Employers can’t block certain discussions
Employees have to be able to discuss specific work-related issues, such as work conditions, pay and labor violations. Even if they don’t work for the company any longer, they can’t be banned from discussing those matters.
The decision in McLaren Macomb doesn’t mean that non-disparagement and confidentiality clauses are always forbidden in severance agreements. These clauses can still cover narrow scopes, such as trade secrets, privileged information and truly disparaging remarks, but that’s generally the limit.
The decision in 2023 wasn’t the end of this matter. On April 7, 2026, the NLRB issued a decision in Prime Communications, LP that leaves the McLaren Macomb standard in place. This means that there is a current decision that limits what can be included in severance agreements. Any severance agreement that includes terms that attempt to silence former employees in too broad of a manner could be considered unenforceable.
For employees, the lesson in this matter is that there are specific limits to what employers are allowed to put into severance agreements. It’s always best to read any employment agreement prior to signing anything, even if the contract is being presented as something that’s standard.
It’s a good idea to have assistance with reviewing severance agreements, primarily because they are often filled with complex legal statements. It may be beneficial to work with someone who’s familiar with these matters so they can alert you to anything that might be concerning and so they can help you uphold your rights and responsibilities.