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Neither Picket Sign nor Tweet

April 13, 2023

Don Walsh

In the evolving discussion and rulings coming from the National Labor Relations Board (NLRB) on what employers can restrict departing or current employees from saying, a new administrative decision has entered the debate. Arising from an unfair labor practice charge, the Administrative Law Judge in Challenge Mfg. Holdings, Inc. v. Gee expounded and clarified what it perceived as the ruling in McLaren Macomb which found fault with a severance agreement imposing confidentiality and nondisparagment restrictions on a departing employee.

The new decision reaffirmed that the law distinguishes between criticizing an employer’s products as opposed to the terms and conditions of employment. The McLaren Macomb decision only prohibits employees from “disparaging” their employer if the employer fails to make clear that the prohibition “does not apply to statements about terms and conditions of employment.”  If this narrow exception is not made clear in a nondisparagement clause imposed on employees, it may still violate the National Labor Relations Act. “It doesn't matter whether they do so with a picket sign or a Twitter tweet,” The judge wrote.

Ultimately, the employer was ordered to correct the language in future agreements with employees “either by removing it or by adding language which makes clear that the prohibition does not apply to criticisms, complaints or other statement concerning the Respondent's labor relations policies and practices, or concerning wages, hours, and/or other terms and conditions of employment.”

This is a good time for employer’s to review any employee policies, handbooks, agreements and severance agreements used to make sure that it is only imposing legal and enforceable restrictions on employees and departing employees.

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