On March 3, 2026, Administrative Law Judge Robert A. Giannasi held that employer Valley Radiology violated Section 8(a)(1) of the National Labor Relations Act (the “Act”) by offering an employee a severance agreement with overbroad non-disparagement and confidentiality provisions, adopting the National Labor Relations Board’s (the “Board”) 2023 reasoning in McLaren Macomb.
The Prior McLaren Macomb Decision
Section 7 of the Act guarantees employees the right to “self-organization, to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Section 8(a)(1) prohibits an employer from interfering with, restraining, or coercing employees in the exercise of their Section 7 rights.
In the McLaren Macomb decision, the Board held that the non-disparagement and confidentiality clauses in an employer’s severance agreement tended to infringe on employees’ Section 7 rights. Specifically, the non-disparagement provision in question prohibited employees from making disparaging statements about the employer to other employees, and the confidentiality provision barred employees from disclosing the agreement’s contents to most third parties (including co-workers and the Board). The Board held that both provisions unlawfully prohibited employees from engaging in Section 7 protected activities, such as discussing working conditions or wages with co-workers, or making complaints to the Board.
Notably, the McLaren Macomb decision reversed course from multiple rulings favoring employers during the first Trump Administration that permitted broad confidentiality and non-disparagement clauses in severance agreements. Observers speculated that the Board could limit or outright abandon McLaren Macomb during the second Trump Administration.
Valley Radiology Follows McLaren Macomb
In Valley Radiology, P.A., Judge Giannasi repeatedly cited McLaren Macomb to find the non-disparagement and confidentiality clauses in Valley Radiology’s severance agreement unlawful.
Valley Radiology’s severance agreement included the following non-disparagement language: “Employee will not say, write, or do anything . . . to disparage or defame Company . . . .” As in McLaren Macomb, this language interfered with employees’ Section 7 rights because employees would be barred from asserting that Valley Radiology violated the Act or from participating in Board investigations. Additionally, the agreement’s confidentiality provision prohibited employees from “disclosing the fact or contents of this Agreement, including the amount of monetary payment, to anyone . . . .” Judge Giannasi determined that the confidentiality language would interfere with Section 7 activity by, for example, prohibiting the employee from filing Board charges in this very case.
For these reasons, Judge Giannasi held that Valley Radiology committed an unfair labor practice in violation of Section 8(a)(1), and ordered the employer to rescind or revise the non-disparagement and confidentiality provisions in a new severance agreement. Interestingly, as Judge Giannasi noted in his decision, Valley Radiology admitted that McLaren Macomb governed the severance agreement in question, but indicated that it intended to petition the Board for reversal.
What Should Employers Do With Severance Agreements Now?
Time will tell whether the Trump administration’s Board appointees narrow or eliminate McLaren Macomb’s precedential value, but the Valley Radiology decision indicates that the Board will continue to treat overbroad confidentiality and non-disparagement clauses with skepticism, if not hostility.
To avoid the headache of a Board challenge, employers should consult with an employment attorney to ensure their severance agreements are lawful. Confidentiality and non-disparagement provisions should be narrowly tailored to avoid restricting employees’ Section 7 rights, with specific carve outs that permit the employee to exercise their rights under the Act.
