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On March 22, 2023, the General Counsel of the National Labor Relations Board (NLRB or the “Board”), Jennifer Abruzzo, issued a memorandum providing guidance in light of the NLRB’s recent decision in McLaren Macomb, 372 NLRB No. 58 (2023). As previously reported, the Board in McLaren Macomb held that overly broad non-disclosure and non-disparagement provisions in severance agreements violate employee rights under the National Labor Relations Act (NLRA or the “Act”). The General Counsel’s memorandum—which is directed to the Board’s regional offices over which she exercises supervisory authority—seeks to clarify the scope of the McLaren Macomb decision, including: the types of provisions that may violate the NLRA; language that may be acceptable in light of the decision; whether the decision applies retroactively to previously executed severance agreements; and the potential applicability of the decision to supervisors. The memorandum is not legally binding, but it does give employers a more informed roadmap for how the Board initially will handle unfair labor practice (“ULP”) charges challenging severance agreements.…

Continue Reading NLRB General Counsel Issues Guidance Memorandum Regarding Severance Agreements

A recent memorandum released by National Labor Relations Board (Board) General Counsel Jennifer Abruzzo previews a Biden-appointed Board’s agenda and priorities. In the August 12, 2021 “Mandatory Submission to Advice” memorandum, General Counsel Abruzzo identifies three types of cases and subject matter areas that the General Counsel would like to “carefully examine.” These three types of cases and subject matter areas include: (1) cases where the Trump-appointed Board overruled past Board precedent, (2) “other initiatives and areas that, while not necessarily the subject of a more recent Board decision, are nevertheless ones [the General Counsel] would like to carefully examine,” and (3) “casehandling matters traditionally submitted to Advice.” Accordingly, General Counsel Abruzzo has instructed the Board’s Regional Directors to seek advice for cases that fall into these three categories.
Continue Reading Memo from NLRB General Counsel Signals Upcoming Shifts in Board Precedent

In Amnesty International of the USA, Inc., 368 NLRB No. 112 (2019), a number of paid staff of the nonprofit advocacy group joined a petition circulated by Amnesty’s unpaid interns, seeking compensation of their volunteer work.  In response to the petition, the director of the organization made statements that she was “disappointed” that the signers of the petitioners had not availed themselves of the organization’s open door policy to discuss the matter with her and the executive team before signing the petition, and that she did not think the petition was “appropriate” as it was “litigious” and “adversarial.” …
Continue Reading The NLRB Rules that Unpaid Interns Are Not Employees Under the Act