Non-Disparagement Severance Clause Restrictions Persist In The Second Trump Administration, For Now
On March 3, 2026, Administrative Law Judge Robert A. Giannasi held that employer Valley Radiology violated Section 8(a)(1) of the National Labor Relations Act (the “Act”) by offering an employee a severance agreement with overbroad non-disparagement and confidentiality provisions, adopting the National Labor Relations Board’s (the “Board”) 2023 reasoning in McLaren Macomb. The Prior McLaren Macomb Decision Section 7 of the Act 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.” Section 8(a)(1) prohibits an employer from interfering with, restraining, or coercing employees in the exercise of their Section 7 rights. In the McLaren Macomb decision, the Board held that the non-disparagement and confidentiality clauses in an employer’s severance agreemen...