In this episode of the Employee Survival Guide, Mark discussses the recent federal government action to provide millions of working Americans new Freedom of Speech rights at work by banning pre and post dispute confidentiality agreements and nondisparagement agreements in severance agreements employees receive when they are terminated. The new rules apply to both private sector employees and unionized employees. This is a huge development favoring employees.
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Hey, it's Mark here and welcome to the next edition of the Employee Survival Guide where I tell you as always, what your employer does definitely not want you to know about and a lot more. Hey, it's Mark and welcome back. Today we talk about the newfound freedoms, freedom of speech for employees in the workplace. In an historic move, the federal government recently gave millions of working Americans new freedom of speech rights at work by banning pre and post dispute confidentiality agreements and non disparagement agreements. The new rules apply to both private sector employees and unionized employees. The National Labor Relations Board the NLRB just ruled in February 2023 That non disparagement and confidentiality provisions in employment agreements violate the National Labor Relations Act, the NLRA because the implement terms restrict the voluntary flow of information and complaints to the agency by employees and cuts off the agency's primary source for investigations of the job market and employer misbehavior. Adding to the excitement, President Biden signed into law the Speak Out act on December 7 2022. The let the ACT bans pre dispute confidentiality agreements, but not post dispute settlement agreements. And the workplace. In cases involving sexual harassment sexual assault. Employers may need to adjust their practices and policies. According to Sherm, the Society for Human Resource Management to comply with the speakout Act, which invalidates non disclosure agreements, and non disparagement agreements designed to keep employees from discussing instances of sexual harassment and sexual assault. The speakout act rose out of the me to movement where NDAs were used to silence employees from speaking out about sexual harassment and sexual assault. Several states have passed laws also banning the use of NDAs. California, Illinois, Maine, New Jersey, New York, Oregon and Washington state have all instituted laws to ban the use of NDAs and sexual harassment and sexual assault cases. Well, what does this all mean for employees? The recent NLRB decision and the speakout Act are a huge and historic transformation in the dysfunctional employee employer relationship that has persisted for far too long. The employers hold on employee freedom of speech has been drastically reduced. The above new legal developments provides much greater protection for employees to speak out about sexual harassment and assault without fear of their employers firing them in retaliation, and threatening a breach of the NDA the non disclosure agreement. The NLRB decision in February 2023 strikes at the heart of the default management practices to silence employees who accept severance agreements with broad confidentiality, and non disclosure, non disparagement provisions, which are now common in every severance agreement. Both private sector and unionize former employees who signed severance agreements are now permitted to talk to talk to current and former employees and the public at large using any conceivable medium of communication such as Instagram and Tiktok. To talk about the terms and conditions of their employment complaints, and the severance they even received, that's a huge deal. The only limit on former employees speech after signing a severance agreement with confidentiality and non disparagement clauses is that they cannot knowingly engage in defamatory statements about their own former employers, specifically, former employers, former employees cannot make disloyal, reckless and malicious ly untrue statements about their employers. Employees should also be aware of the Defend Trade Secrets Act to ensure that they do not violate the recent protections afforded employers other than these two exceptions, everything else about employees employment is allowed. So watch out employers. And let me clarify, in its last portion, I did mention that employees are signing severance agreements with these provisions, because these provisions can be used in a very narrowly tailored manner, narrowly tailored so they don't cut off your ability to basically complain to the public about what's going on. We don't want to stifle their speech. That's what the NLR be has. That's our policy in terms of employees making these complaints to anyone, including the agency. Now, the NLRB decision, the February 23 2020, the fabric 2023 NLRB decision reversed prior board decisions. Now I'm going to start quoting from the language of the decision because it's very important that you hear exactly what the Council for the NLRB wrote in summarizing the new guidance after the decision. Holding that employers violate the NLRA when they offer employees severance agreements that require employees to broadly waive their rights under the act. Specifically, the board held that were a severance agreement unlawfully conditions receipt of severance benefits on the forfeiture of statutory rights. The mere proffer meaning the giving of the agreement itself violates section eight, a one of the Act because it has a reasonable tendency to interfere or restrain the prospective exercise of those rights. Both the separating employee and those who remain employed. The severance agreement at issue in the case contain overly broad and non disparagement, and confidentiality clauses that tend to interfere with restrain or coerce employees exercise of Section seven rights means the right to speak out. Specifically, the non disclosure provisions contain a non disparagement clause that advises employees they are prohibited from making statements that could disparage or harm the image of the employer and the confidentiality clause. In the same agreement, advise employees that they are prohibited from disclosing the terms of the agreement to anyone except for a spouse or professional advisor, unless compelled to do so by law. The severance agreement included monetary and injunctive sanctions for breach of these provisions. Again, that was the guidance from the Council for the NLRB. A word of caution, the above decision to not cover supervisory employees, as they are generally not covered under the NLRA. The test to determine if your supervisor and the NLRA. It can be found in the show notes to this episode. Was the NLRB decision politically motivated? I actually looked this up. The National Labor Relations Board that decided the now overturned decisions were made up of President Trump appointees. The majority of the current board is made up of a political appointees of President Biden. The NLRB General Counsel, who I just cited, the guidance from is also a Biden appointee. So it appears politics may have influenced the dramatic swing and the current law now favoring employees. What employees and former employees can can and cannot say. According to the February 2023 NLRB decision, the broad scope and the wide protection afforded employees by section seven of the ACC bear repeating it is axiomatic that discussions, terms and conditions of employment with coworkers lies at the heart of the protection of Section seven activity. Section seven rights are not limited to discussions with coworkers, as they do not depend on the existence of an employment relationship between the employee and the employer. And the board has repeatedly reformed affirmed that the rights extended to former employees as well. It is further long established that section seven protections extend to employee efforts to improve the terms and conditions of employment, or otherwise improve their lot as employees through channels outside the immediate employee employer relationship. These channels include administrative, judicial, legislative, political forums, newspaper, the media, social media to be more specifically, and communications to the public at large apart and related to an ongoing labor dispute. According accordingly to Section seven affords protection for employees who are engaged in communication with a wide range of third parties in circumstances where the communication is related to an ongoing labor dispute. And when the communication is not so disloyal, reckless, or maliciously untrue to lose the axe protection. And last sentence I just stated, is the anti defense defamation exception to the broad pro communication policy of the NLRA. Well, what about existing whistleblower protections for employees? There have always been state laws that protect employees from retaliation and wrongful termination, After confronting their employers and matters of public concern. Specifically, employees have had the right typically under the First Amendment in state constitutions to speak out in good faith against implement practices that are fraudulent and harmful to the public at large. A final word, although these new legal changes favor employees by providing more freedom of speech, I wanted to be clear about the overall ability of employees to engage in freedom of expression at work, especially in this dei era. Employers are like private governments with their own rules, and the state and federal governments have limited control over them. There are anti discrimination statutes, of course, that bar employer misconduct. However, employers do, in fact control much of what you can and cannot say while working. In this new dei era. Many employers are cautious about instituting drastic control over employees freedom of speech at work, for fear of pissing off employees. But the DEI era is waning. And management may soon silence your speech while at work. The new speakout act and then the above NLRB decision I've talked about in this episode, tip the balance back in the employees favor for now. If you'd like more information about this topic, please don't hesitate to call us at Carey & Associates PC. Have a great week, talk to you soon. If you'd like the Employee Survival Guide, I really encourage you to leave a review. 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