Last week, the National Labor Relations Board (NLRB) signaled its willingness to revisit the Biden NLRB’s broad interpretation of Section 7 rights when it has a three-member majority.
Background
Section 7 of the National Labor Relations Act (NLRA) gives all non-supervisory employees, including those in non-union workplaces, the right to discuss and/or act together to improve terms and conditions of employment, including salary, bonus, benefits, and working conditions, such as safety, harassment and discrimination, or to disclose their own contact information or compensation.
The 2023 McLaren Macomb Decision
In 2023, in McLaren Macomb, 372 NLRB No. 48 (2023), the NLRB ruled that simply offering severance agreements with overbroad non-disparagement and confidentiality language to non-supervisory employees in and of itself is an independent violation of Section 7 and 8(a)(1) of the NLRA, regardless of whether the employee signed the agreement or the employer enforced those terms:
Overbroad Non-Disparagement: At all times hereafter, the Employee agrees not to make statements to Employer’s employees or to the general public which could disparage or harm the image of Employer.
Overbroad Confidentiality: The Employee acknowledges that the terms of this Agreement are confidential and agrees not to disclose them to any third person, other than a spouse, or professional advisor unless legally compelled to do so. At all times hereafter, the Employee promises and agrees not to disclose information, knowledge, or materials of a confidential, privileged, or proprietary nature.
The 2026 Prime Communications Decision
On April 7, 2023, in Prime Communications, 374 NLRB No. 88 (2026), in a 2 to 1 decision, a three-member panel of the Trump NLRB affirmed an Administrative Law Judge’s decision finding that the following provisions in a severance agreement were overbroad and violated Section 7 and 8(a)(1) of the NLRA:
Overbroad Non-Disparagement: Employee agrees to refrain from making disparaging, defamatory, negative or other similar remarks concerning Prime, Prime’s business, Prime’s partners, owners, principals, managers, directors, officers, employees, agents, or services, to any third party, except to the extent that Employee (a) is required to make such remarks by applicable law or regulation or judicial or regulatory process, or (b) makes such remarks in or in connection with any then pending litigation or other legal proceeding.
Overbroad Confidentiality: Employee promises that he will maintain in confidence the terms and existence of this Agreement and will not disclose the existence of this Agreement or its terms to anyone else, except to his spouse, tax advisor and/or attorney.
The Trump NLRB reached this decision even though in 2025 Trump’s then-acting general counsel rescinded the guidance instructing NLRB Regions how to apply the Board’s 2023 decision in McLaren Macomb. However, the three-member panel indicated a willingness to reconsider the NLRB’s McLaren Macomb decision when it had a three-member majority. So, for now, McLaren Macomb and other Biden-era NLRB decisions, such as Stericycle, 372 NLRB No. 113 (2023), remain good law.
The 2023 Stericycle Decision
In Stericycle, the NLRB adopted a low bar for non-supervisory employees challenging facially neutral work rules and policies. Under Stericycle, the NLRB will analyze if an economically dependent non-supervisory employee contemplating engaging in Section 7 activity could reasonably interpret the rule or policy to have a coercive meaning. If yes, then the rule or policy will be presumptively unlawful even if a contrary non-coercive interpretation is equally reasonable. The only way for an employer to rebut the presumption is “by proving that the rule advances a legitimate and substantial business interest, and that the employer is unable to advance that interest with a more narrowly tailored rule.”
NLRB Change Seemingly on the Horizon
The Trump Administration has renominated the Democratic member on the NLRB and nominated another Republican. If both are confirmed, there will be a three-member Republican majority. So, change may happen sooner than later. Stay tuned.
