Severance NDA / Non-Disparagement Enforceability Post-McLaren Macomb

Who this applies to#

When your employer offers severance in exchange for signing a broad non-disparagement and confidentiality agreement, the enforceability of those restrictions depends critically on whether you are an NLRA-covered non-supervisory employee — and on what happened to your rights under NLRB McLaren Macomb, 372 NLRB No. 58, decided February 21, 2023. Most private-sector employees in the United States are covered by the National Labor Relations Act (NLRA). The NLRA's core protection, Section 7 (29 U.S.C. § 157), gives covered employees the right to engage in concerted activities for mutual aid or protection — including discussing wages, working conditions, employer misconduct, or ongoing legal proceedings with coworkers, unions, government agencies, and the public. Section 8(a)(1) (29 U.S.C. § 158(a)(1)) makes it an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of those § 7 rights. Critically, these protections do not extend to every employee. The NLRA excludes statutory supervisors — defined in 29 U.S.C. § 152(11) as individuals with authority to hire, fire, promote, discipline, or direct employees using independent judgment — as well as managers and certain confidential employees. If you are a supervisor or manager, the McLaren Macomb decision simply does not apply to you, and your non-disparagement clause is governed solely by ordinary contract law and applicable state rules.

What changes for you#

The McLaren Macomb decision (372 NLRB No. 58) changed the legal analysis for severance NDAs and non-disparagement clauses in two ways: it established that the mere tendering of an overbroad clause to a non-supervisory employee is itself an unfair labor practice (ULP) under § 8(a)(1), and it identified the characteristics that make a clause overbroad. An overbroad non-disparagement clause is one that, on its face, could prevent a covered employee from (1) speaking negatively about the employer to coworkers about wages or working conditions, (2) filing charges or giving testimony with the NLRB or other government agencies, (3) participating in protected concerted activity with coworkers, or (4) communicating with a union. Similarly, an overbroad confidentiality clause is one that prevents an employee from disclosing the terms of the severance agreement to anyone — including the NLRB, union representatives, or coworkers with whom the employee wishes to engage in concerted activity. The Board held that an employer violates § 8(a)(1) by offering an agreement that a reasonable employee would understand as restricting their § 7 rights, even if the employee does not sign it. Permissible clause language narrows the restriction to genuine categories that do not implicate § 7 rights. A non-disparagement clause limited to false and defamatory statements is not the same as a blanket prohibition on any negative public statements. A confidentiality clause limited to genuinely proprietary business information — trade secrets, client lists, proprietary technology — does not restrict § 7 activity. Clauses that include explicit carve-outs stating that nothing in the agreement limits the employee's rights under the NLRA, Title VII, or other employment statutes are materially less likely to violate § 8(a)(1). GC Memo 23-05, issued March 22, 2023, provided NLRB Regional Office guidance on retroactivity and on what clauses could be saved by limiting language. That memo was rescinded on February 14, 2025, by GC Memo 25-05, reflecting the new administration's changed enforcement priorities. The rescission of GC 23-05 does not, however, overrule the Board's decision in 372 NLRB No. 58 — Board decisions are law that can only be overruled by a subsequent Board decision or a federal appellate court. Employees and employers should monitor whether the current Board modifies or reconsiders the McLaren Macomb standard in a future case. Practically speaking: if your severance agreement contains a broadly worded non-disparagement clause and you are a non-supervisory employee, you have a plausible argument that the clause is unenforceable under McLaren Macomb — and potentially a ULP charge to file within 6 months of signing. However, the current enforcement environment (post-GC 25-05 rescission) means the NLRB may be less aggressive in pursuing such charges. Consulting an employment attorney before signing is the most reliable path.

Decision tree#

1. If Your role involves hiring, firing, directing, or disciplining other employees using independent judgment

   Then → You are likely a statutory supervisor under 29 U.S.C. § 152(11) and are NOT covered by NLRA § 7. The McLaren Macomb decision does not apply to you. A non-disparagement clause in your severance agreement is governed solely by contract law and state enforceability rules.

   Else: Continue to the next question — you may be an NLRA-covered non-supervisory employee.

2. If Your severance agreement's non-disparagement clause broadly prohibits any negative statements about the employer, its officers, directors, employees, or business without carving out § 7-protected activity

   Then → Under McLaren Macomb (372 NLRB No. 58), such a clause is presumptively overbroad and violates § 8(a)(1). You may file an unfair labor practice charge with the NLRB within 6 months of signing. Note: NLRB GC Memo 23-05 (Mar 22, 2023), which provided enforcement guidance, was rescinded by GC 25-05 (Feb 14, 2025), but the Board decision itself remains binding NLRB precedent.

   Else: A narrowly tailored clause limited to, for example, defamatory statements or disclosures of genuine trade secrets, with an explicit carve-out for § 7-protected concerted activity, is more likely permissible under the McLaren Macomb standard.

3. If Your agreement was signed before February 21, 2023, and contains an overbroad confidentiality or non-disparagement clause

   Then → NLRB GC Memo 23-05 addressed retroactivity, indicating that pre-2023 overbroad clauses could still be subject to ULP scrutiny if an employer maintained or sought to enforce them post-decision. That memo was rescinded in Feb 2025, but the Board decision's retroactivity analysis from the decision itself remains relevant. Consult an employment attorney about the current enforcement posture.

   Else: Post-February 21, 2023 agreements are directly subject to the McLaren Macomb standard.

Calculate your numbers#

Inputs default to federal assumptions; adjust to your specifics.

Action steps#

• Determine whether you are a statutory supervisor under 29 U.S.C. § 152(11) before relying on McLaren Macomb. If your role involves independent judgment in hiring, firing, promoting, or directing other employees, the NLRA likely does not protect you.
• Read the non-disparagement and confidentiality clauses of your severance agreement carefully. Does the non-disparagement clause apply to "any statements" about the employer, or is it limited to false and defamatory statements? Does the confidentiality clause cover "all terms" of the agreement, or only genuinely proprietary information?
• Look for an NLRA carve-out. Many post-McLaren Macomb severance agreements include language such as "Nothing in this agreement limits your rights under the National Labor Relations Act." The presence of this carve-out substantially narrows the enforceability argument.
• If the clause appears overbroad and you are a non-supervisory employee, you may file an unfair labor practice charge with the NLRB Regional Office within 6 months of the date the agreement was offered to you (not just the date you signed). Filing a charge does not waive your right to the severance money.
• Negotiate for narrowing language. Request that the employer add an explicit carve-out for NLRA, EEOC, and other government-agency communications, and narrow the non-disparagement clause to false and defamatory statements only.
• If you are 40 or older, the OWBPA's 21-day review window (or 45-day window for group exits) gives you mandatory time to consult an employment attorney before signing — use that time to assess the non-disparagement clause.
• Monitor the current NLRB enforcement posture. GC Memo 23-05 was rescinded in February 2025; the Board's current leadership may pursue fewer McLaren Macomb-based ULP charges, but the Board decision itself remains the governing legal standard unless overruled.

FAQ#

Does McLaren Macomb mean my employer cannot ask me to sign a non-disparagement clause at all?

No. The McLaren Macomb decision (372 NLRB No. 58) does not prohibit all non-disparagement clauses. It holds that overbroad clauses — those that a reasonable employee would understand as restricting their NLRA Section 7 rights to engage in protected concerted activity — violate Section 8(a)(1). A narrowly drawn clause limited to false and defamatory statements, with an explicit carve-out for NLRA-protected activity, is not per se impermissible. The distinction is overbreadth, not the existence of a clause.

I am a manager. Does McLaren Macomb protect me?

No. The NLRA's Section 7 protections apply only to non-supervisory, non-managerial employees. If you are a statutory supervisor under 29 U.S.C. § 152(11) — defined as someone with authority, using independent judgment, to hire, fire, promote, discipline, assign, or direct employees — the NLRA does not cover you. Your non-disparagement clause is governed by contract law and applicable state statutes, not by McLaren Macomb.

NLRB GC Memo 23-05 was rescinded in February 2025. Does that mean McLaren Macomb no longer applies?

No. GC Memo 23-05 was enforcement guidance issued by the General Counsel's office — it directed Regional Offices on how to handle McLaren Macomb-related charges. Its rescission on February 14, 2025, by GC Memo 25-05 reflects a change in enforcement priorities under the current administration. However, the Board decision itself (372 NLRB No. 58) remains binding NLRB precedent and can only be overruled by a subsequent Board decision or a federal appellate court. As of May 2026, no Board decision has overruled McLaren Macomb.

Can I file an NLRB charge and still keep my severance?

Potentially yes. An unfair labor practice charge under Section 8(a)(1) is filed with the NLRB, not in civil court, and is separate from your contractual claim to severance. You can file a charge within 6 months of the date the agreement was offered to you. Whether accepting severance payments while challenging the agreement's specific clauses is advisable depends on the facts; consult an employment attorney.

What language should I look for to know if my clause has an adequate § 7 carve-out?

Look for language along the lines of: "Nothing in this agreement prohibits you from filing charges with, cooperating with, or participating in any investigation by the NLRB, EEOC, or any other government agency, nor from exercising any rights protected under Section 7 of the National Labor Relations Act." Also look for the non-disparagement clause to be limited to "false and defamatory statements" rather than "any negative or disparaging statements." Both are meaningful indicators of a post-McLaren Macomb compliant agreement.

Does this ruling apply to agreements signed before February 21, 2023?

NLRB GC Memo 23-05 addressed retroactivity and indicated that employers who seek to enforce pre-2023 overbroad clauses could face ULP scrutiny. That guidance was rescinded in February 2025. Whether an employer's ongoing enforcement of a pre-2023 overbroad clause in a post-McLaren Macomb environment constitutes a continuing violation is a fact-specific legal question. The 6-month statute of limitations for ULP charges runs from the date the employer engaged in the unfair practice — which could include attempting to enforce the clause.

Does this apply to confidentiality clauses too, or only non-disparagement?

Both. McLaren Macomb found that overbroad confidentiality provisions — specifically those prohibiting any disclosure of the severance agreement's terms to anyone — also violate Section 8(a)(1) because they prevent employees from sharing information relevant to their § 7 concerted activity (such as telling coworkers what the employer paid in a layoff). A confidentiality clause limited to genuinely proprietary business information and that does not restrict disclosure to government agencies or concerted-activity communications is more defensible.

Sources#