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New NLRB decision affects nonprofits too

On Behalf of | Mar 3, 2023 | Employment Law

As a nonprofit organization, you do good work that helps the public good. And, as a result, your organization has unique reporting requirements. However, like most other businesses, your organization is under the jurisdiction of the National Labor Relations Board. A recent decision by the NLRB may affect you if you plan layoffs, like other nonprofits, including National Public Radio.

The National Labor Relations Board

The issue that blew up at the end of February is broad confidentiality clauses that included non-disparagement clauses (where you cannot talk about your former employer) and clauses where you cannot talk about the nature of the severance agreement itself. Of course, these broad clauses can be so broad to include prohibitions on discussing the nature of the employment or even that you were employed by that specific employer entirely.

In the past, these broad prohibitions were upheld by the NLRB under Sections 7 and 8(a)(1) of the National Labor Relations Act. However, with the newly empaneled NLRB, they have changed their stance and found that these types of broad confidentiality clauses violate these sections.

The issue for nonprofits

For nonprofits, there could be an issue if there has been or will be layoffs that include such severance agreements that include confidentiality clauses. If they were drafted prior to this new guidance, you will need to consult with your attorney to ensure that your severance agreement is still enforceable. It may need to be rewritten to include this new guidance. Otherwise, your confidentiality provisions could be voided, in addition to the entire severance agreements themselves. This could defeat the entire purpose of these agreements in the first place, avoiding litigation after layoffs to save money.