Severance Non-Disparagement and Confidentiality After McLaren Macomb

Why rescinding GC 23-05 did not overrule McLaren Macomb

Confusing a General Counsel memo rescission with a Board reversal is an unforced legal error. Until a quorate National Labor Relations Board overrules McLaren Macomb in an adjudicated case, offering broad gag terms to covered workers breaks federal law.

In boardrooms and turning points across corporate restructurings since early 2025, executives keep repeating a dangerous half-truth: "Didn’t the new NLRB General Counsel scrap the severance non-disparagement rule?" Pull the primary agency documents before letting anyone revive your 2019 separation template.

Here is the exact distinction between prosecutorial memos and binding adjudicative law:

• The binding Board precedent (Feb. 21, 2023): In McLaren Macomb, 372 NLRB No. 58 (2023), the National Labor Relations Board held that merely proffering a severance agreement containing overly broad non-disparagement or confidentiality clauses to furloughed or departing non-supervisory employees independently violates Section 8(a)(1) of the NLRA (29 U.S.C. § 158(a)(1)), whether or not the employee signs it.
• The 2023 prosecutorial expansion & 2025 rescission: On March 22, 2023, former General Counsel Jennifer Abruzzo issued Memo GC 23-05 urging aggressive regional prosecution and retroactive theories. On February 14, 2025, Acting General Counsel William B. Cowen issued Memo GC 25-05, rescinding GC 23-05 alongside dozens of prior policy memoranda.
• What remains controlling today: A General Counsel cannot overrule a published decision of the five-member Board. Administrative Law Judges remain bound by McLaren Macomb unless and until the Board itself issues a new decision overturning it. Worse, under Section 10(b)’s six-month charge window—and three-to-six-year state contract clocks—sloppy agreements signed today remain exposed to challenge or voiding when used in leverage disputes tomorrow.

What failed inside the actual McLaren Macomb clauses—and how to narrow them

The Board did not outlaw severance agreements or trade-secret protection. It struck down sweeping language that barred departing workers from discussing workplace conditions or severance terms with coworkers.

Look at the exact operational defects the Board identified in McLaren Macomb so your people operations team cuts out the poison without giving away legitimate company protections:

1. The fatally broad non-disparagement defect: McLaren’s agreement barred employees from making statements to coworkers or the public that "could disparage or harm the image of Employer, its parent and affiliated entities and their officers, directors, employees, agents and representatives," with zero time limit and zero restriction to malicious falsehoods. Because public or coworker criticism of unsafe staffing, unfair pay, or management conduct sits at the heart of Section 7, a boundless "don’t say anything negative" clause chills statutory rights on its face. The fix: For non-supervisory employees, either omit non-disparagement altogether (often the cleanest move in rank-and-file RIFs) or limit it strictly to maliciously untrue statements made with knowledge of their falsity or reckless disregard for their truth or falsity—matching the Supreme Court’s labor-defamation standard in Linn v. Plant Guard Workers, 383 U.S. 53 (1966).
2. The fatally broad confidentiality defect: McLaren barred disclosing the terms of the agreement "to any third person" outside a spouse or tax/legal advisor. That prohibited a laid-off employee from telling coworkers what severance formula was offered or coordinating an NLRB or EEOC charge. The fix: Narrow confidentiality strictly to (a) the specific dollar amount of the severance payment (with an explicit carve-out permitting concerted Section 7 wage/benefit discussions with coworkers and unions where required) and (b) legitimate non-public trade secrets, customer lists, source code, and proprietary financial data.
3. Add a prominent Section 7 & government-agency savings clause plus severability: While generic boilerplate buried on page 9 will not rescue a blatant gag clause on page 2, a clear, front-and-center Protected Rights section paired with a severability ("blue-pencil") clause keeps an isolated drafting flaw from voiding the entire release of Title VII or ADEA claims.

Splitting templates cleanly: NLRA § 2(11) supervisors vs. non-supervisory staff

Maintain two separate severance templates rather than forcing one watered-down form across the entire org chart. Verify true Section 2(11) authority before putting an employee on the executive track.

From a fiduciary seat, using a single separation agreement for both a warehouse associate and a departing Chief Revenue Officer wastes contractual leverage at the top or manufactures NLRA violations at the bottom. Under 29 U.S.C. § 152(3) and § 152(11), statutory supervisors who exercise independent judgment to hire, fire, discipline, assign, or effectively recommend those actions fall outside NLRA Section 7—save for narrow Parker-Robb Chevrolet, 262 NLRB 402 (1982), scenarios where a supervisor was fired for refusing to commit an unfair labor practice.

That means an employer can lawfully require broader commercial non-disparagement and agreement-term confidentiality from a true § 2(11) Vice President under federal labor law—until state Silenced No More statutes enter the room.

The state trap that catches C-suite severances: California SB 331 & Washington RCW 49.44.211

State #MeToo and Silenced No More laws carry zero supervisor exemption. Leaving mandatory statutory carve-outs or the 5-business-day clock out of a California or Washington VP exit triggers statutory penalties and voided clauses.

Even when an exiting executive earns $350,000 and manages forty people, multi-state statutory overlays strictly forbid gagging disclosures of alleged unlawful workplace conduct—and stack directly atop the 21-day / 45-day federal age-release clocks mapped in our OWBPA rolling-layoff disclosure guide:

• California SB 331 (Cal. Gov. Code § 12964.5): Applies to all employees regardless of age or executive rank. First, any separation agreement containing a non-disparagement or confidentiality clause must include the exact statutory safe harbor substantially stating: "Nothing in this agreement prevents you from discussing or disclosing information about unlawful acts in the workplace, such as harassment or discrimination or any other conduct that you have reason to believe is unlawful." Second, the employer must notify the employee in writing of their right to consult an attorney and grant at least five business days to review the agreement—even for a 27-year-old individual exit where federal OWBPA’s 21-day rule does not apply!
• Washington Silenced No More Act (RCW 49.44.211): Sweeps even wider than California. It covers both employees and independent contractors, and voids any non-disclosure or non-disparagement provision covering conduct the worker reasonably believes to be illegal discrimination, harassment, retaliation, sexual assault, or a wage-and-hour violation (such as unpaid overtime or misclassification). Merely requesting or requiring a prohibited clause exposes the employer to actual damages or statutory damages of at least $10,000 plus reasonable attorneys’ fees—though employers may still keep the dollar amount paid confidential and protect trade secrets.
• SEC Rule 21F-17 (17 CFR § 240.21F-17(a)): Across every state and rank, never require departing staff to notify Legal before speaking to regulators or waive SEC/OSHA whistleblower monetary awards; the SEC routinely levies seven- and eight-figure civil penalties on private and public companies alike for severance clauses that impede direct regulator reporting or bounty recovery.

Copy-ready Protected Rights & Multi-State Carve-Out Rider

Place this rider prominently inside the main body of your separation template—directly beside any confidentiality or non-disparagement paragraph—rather than hiding it in boilerplate misc clauses.

SECTION 6 — NARROWED CONFIDENTIALITY, DEFAMATION LIMIT & PROTECTED RIGHTS CARVE-OUT
(Template A: Non-Supervisory & Multi-State Compliant Version)

6.1 Trade Secrets & Financial Payment Amount Only. Employee reaffirms existing obligations not to use or disclose Company’s non-public trade secrets, source code, or proprietary customer data (subject to the Defend Trade Secrets Act immunity notice in 18 U.S.C. § 1833(b)). To the extent permitted by applicable law, Employee agrees not to publicly disclose the specific monetary dollar figure in Section 2, except to Employee’s spouse/partner, tax or legal advisors, as required by law, or in protected concerted discussions regarding wages, benefits, or working conditions under Section 7 of the National Labor Relations Act (NLRA).

6.2 Malicious Defamation Limit Only. Employee agrees not to make maliciously untrue statements regarding the Company that are made with actual knowledge of their falsity or with reckless disregard for their truth or falsity.

6.3 Explicit Statutory & Regulatory Carve-Outs (Overrides All Other Provisions).
(a) California & Multi-State Unlawful-Acts Disclosure: Nothing in this Agreement prevents you from discussing or disclosing information about unlawful acts in the workplace, such as harassment, discrimination, retaliation, sexual assault, wage-and-hour violations, or any other conduct that you have reason to believe is unlawful (Cal. Gov. Code § 12964.5; RCW 49.44.211).
(b) NLRA Section 7 Concerted Rights: Nothing in this Agreement restricts non-supervisory employees from exercising rights under Section 7 of the NLRA to communicate with coworkers, former coworkers, unions, or third parties regarding wages, hours, severance practices, or other terms and conditions of employment for mutual aid or protection.
(c) Government Agencies & Whistleblower Awards (SEC Rule 21F-17): Nothing in this Agreement prohibits or requires prior notice to the Company before filing a charge or communicating directly with the EEOC, NLRB, SEC, OSHA, DOJ, or any state civil rights agency, nor limits Employee’s right to receive a government-administered whistleblower monetary award.

6.4 Counsel Notice & Review Period. You are hereby advised in writing of your right to consult an attorney prior to signing. You have at least [five (5) business days / twenty-one (21) calendar days / forty-five (45) calendar days] to review this Agreement; any decision to sign earlier is knowing, voluntary, and uncoerced.