On February 21, 2023, the National Labor Relations Board (NLRB) issued McLaren Macomb, 372 NLRB No. 58, in which the board generally held that confidentiality and non-disparagement clauses in severance agreements offered by employers to non-management personnel violate the National Labor Relations Act (the Act). This decision made clear that the rule applies to both unionized and non-unionized workforces. On March 22, 2023, in the wake of this decision, the NLRB General Counsel issued Memorandum GC 23-05 (the Memorandum), providing additional guidance to NLRB employees on how to interpret and enforce the McLaren Macomb ruling. While much has been written about the general implications for employers arising out of McLaren Macomb and the Memorandum, there has been less focus on the Memorandum’s specific impact on employers’ efforts to protect their confidential information and trade secrets.
While McLaren Macomb focuses primarily on non-disparagement and confidentiality clauses in separation agreements, the Memorandum focuses on additional contractual provisions the NLRB may ultimately deem problematic under the Act. For example, the Memorandum opines that traditional confidentiality or non-disclosure provisions that aim to protect employer confidential information and trade secrets may be problematic if they are not narrowly construed. The Memorandum also states that non-compete clauses, non-solicitation clauses and no-poaching clauses may violate the Act—a position consistent with efforts by other federal agencies to narrow the use of restrictive covenants.