NLRB Reaffirms Biden-Era Decision on Confidentiality Agreements

In its recent decision in Prime Communications, LP, the National Labor Relations Board (the “Board”) surprisingly reaffirmed a Biden-Board precedent.  Namely, the Board affirmed that severance agreements containing confidentiality or non‑disparagement provisions that have a “reasonable tendency” to interfere with employees’ rights under Section 7 of the Act are unlawful. However, the real signal of this decision is a call for a new Trump nominee to the Board. For the short term, employers should not expect a near-term retreat from Biden-era decisions because the current Board does not contain a three-member majority.

The decision reinforces the Board’s 2023 decision in McLaren McComb that employers must proactively review these types of agreements to ensure they do not restrict, even inadvertently, employees’ rights to speak about workplace issues or cooperate with government agencies. For the time being, employers should expect existing federal labor law standards governing severance agreements to remain in effect and should adjust their drafting and review practices accordingly.

In McLaren Macomb, the Board held that employers violate Section 8(a)(1) of the National Labor Relations Act (“NLRA”) when they offer or maintain severance agreements containing confidentiality or non‑disparagement provisions that have a “reasonable tendency” to interfere with employees’ rights under Section 7 of the Act.[1]

The decision marked a sharp departure from Board precedent from President Trump’s first term by refocusing the analysis on the language of the agreement itself, rather than on whether the employer engaged in additional unlawful conduct or whether the employee actually felt coerced. Under McLaren Macomb, even offering an agreement with overly broad terms can be unlawful if the provisions could reasonably be read to chill employees from:

• Discussing terms and conditions of employment;
• Communicating with coworkers, unions, or the public about workplace issues; or
• Filing or assisting with charges before the NLRB or other agencies.

Importantly for employers, McLaren Macomb applies regardless of whether the employee signs the agreement and regardless of whether the employee is still employed or already separated. The Board also made clear that Section 7 rights extend to former employees and to communications with third parties, not just current coworkers.

In Prime Communications, LP, the Board concluded that the employer violated the NLRA by issuing and maintaining severance agreements containing overly broad non‑disparagement and confidentiality provisions.[2]

The severance agreements at issue prohibited former employees from making “disparaging, defamatory, negative or other similar remarks” about the employer and broadly restricted them from contacting coworkers, assisting agencies, or disclosing the terms or even the existence of the agreement. Applying McLaren Macomb, the Board concluded these provisions unlawfully interfered with employees’ Section 7 rights on their face.

Of particular significance, the Board expressly addressed whether McLaren Macomb should be reconsidered. Chairman Murphy and Member Mayer (both Trump appointees) stated they were “open to reconsideration of that precedent in a future appropriate proceeding,” but declined to do so in the absence of a three‑member majority to overrule it.[3] This was a clear signal to the Trump Administration: “Send us another Republican Board member – pronto.”

The decision underscores a key institutional norm of the Board: major precedent is rarely overturned without three affirmative votes. Until another Board appointment is made, employers should expect McLaren Macomb, and other controversial Biden-era rulings, to remain the governing standard.

For now, employers should assume that confidentiality and non‑disparagement provisions in severance or separation agreements may be closely scrutinized. Broad language that restricts employees from discussing workplace issues or cooperating with government agencies presents significant risk. In particular:

• Non‑disparagement clauses should not broadly prohibit statements about the employer, its managers, or its operations without clear, narrow limitations.
• Confidentiality provisions should not restrict employees from disclosing the existence or terms of an agreement where such disclosure would involve protected activity, including communications with coworkers, unions, or government agencies.
• Provisions that prohibit employees from assisting agencies, responding to third‑party inquiries, or contacting former coworkers are especially likely to be deemed unlawful.
• The absence of actual enforcement, or a disclaimer that the employer does not intend to interfere with Section 7 rights, will not cure otherwise overbroad language.

Employers should work with counsel to ensure severance agreements are narrowly tailored and clearly preserve employees’ rights under the NLRA.

Within days of the decision in Prime Communications, the Trump Administration responded. On April 13, 2026, President Trump nominated James Macy to serve as a Republican Member of the National Labor Relations Board, a move that, if confirmed, would give Republican appointees a pivotal third vote on the five‑member Board.[4]

This nomination materially changes the Board’s near‑term landscape, increasing the possibility that Biden‑era precedent, including McLaren Macomb, could be reconsidered in a future case. At the same time, the nomination does not itself alter existing law. Until the nominee is confirmed by Congress and the Board affirmatively votes to overrule or modify current precedent, McLaren Macomb remains controlling.

More broadly, if a Republican majority is confirmed, employers will likely see the Board revisit several significant Biden‑era decisions beyond McLaren Macomb. These include the Board’s expanded use of bargaining orders under Cemex Construction Materials Pacific[5], its prohibition on mandatory captive‑audience meetings[6], its employee‑friendly standards governing workplace rules[7], employer speech during organizing campaigns[8], and discipline for misconduct occurring during protected concerted activity.[9]

If you have questions about revising or auditing severance agreements, confidentiality provisions, non‑disparagement clauses, or about how current federal labor law requirements may affect your broader employment practices, please contact a member of our Labor‑Management Relations team.

[1] 372 NLRB No. 58, slip op. at 9 (2023).

[2] 374 NLRB No. 88 (Apr. 7, 2026).

[3] Id. at 1, n.1.

[4] Nominations and Withdrawal Sent to the Senate, White House (Apr. 13, 2026) (announcing nomination of James Macy, of Wisconsin, to be a Member of the National Labor Relations Board for a term expiring Aug. 27, 2030).

[5] 372 NLRB No. 130 (2023) (establishing a new framework requiring employers, upon a union’s demand for recognition supported by majority evidence, to either recognize the union and bargain or promptly file an election petition, and authorizing bargaining orders where employer misconduct undermines a fair election).

[6] Amazon.com Services LLC, 373 NLRB No. 136 (2024) (holding that employers violate the NLRA by requiring employees to attend mandatory “captive audience” meetings concerning unionization, absent advance notice that attendance is voluntary and without adverse consequences).

[7] Stericycle, Inc., 372 NLRB No. 113 (2023) (adopting a new standard under which workplace rules are presumptively unlawful if they could reasonably be interpreted to chill employees’ Section 7 rights, unless the employer proves the rule is narrowly tailored to a legitimate business interest).

[8] Siren Retail Corp. d/b/a Starbucks, 373 NLRB No. 134 (2024) (holding that employer predictions about the impact of unionization on the employer–employee relationship are lawful only if carefully phrased, based on objective fact, and limited to consequences beyond the employer’s control).

[9] Lion Elastomers LLC II, 372 NLRB No. 83 (2023) (providing greater leeway for employee misconduct occurring in the course of protected concerted activity).