NLRB Considers Revision of Severance Decision

March 20, 2023

The National Labor Relations Board (NLRB) recently restricted the use of confidentiality and non-disparagement clauses within severance agreements.



In McLaren Macomb, et al., a Michigan hospital furloughed 11 union employees deemed “nonessential” after the COVID-19 pandemic forced the hospital to cease performing elective and outpatient surgeries. In June 2020, the hospital made the 11 furloughs permanent, and presented the employees with severance agreements, containing confidentiality and non-disparagement clauses.

The Biden-era NLRB has deemed the confidentiality and non-disparagement clauses in McLaren to be unlawful.


Under the Trump-era NLRB, such clauses would likely have been held as lawful, provided the decisions in Baylor University Medical Center and IGT d/b/a International Game Technology. It should be noted that the aforementioned decisions reversed long-settled precedent and replaced it with what the NLRB in McLaren refers to as “. . . a test that fails to recognize that unlawful provisions in a severance agreement proffered to employees have a reasonable tendency to interfere with, restrain, or coerce the exercise of employment rights under Section 7 of the Act.”


The NLRB’s decision in McLaren has explicitly overruled Baylor and IGT. In its decision it used the reinstated test to find the confidentiality and non-disparagement clauses at issue in McLaren to be unlawful.


The provisions at issue in McLaren would bar the hospital employees from providing information to the NLRB regarding the hospital’s interference with employees’ statutory rights. It would also preclude an employee from communicating with a union or board of directors, and prevent an employee from assisting another employee with issues concerning their employer.

It is likely that McLaren will be appealed, and even possible that this case arrives before the Supreme Court in due time.


If your business has any questions on this topic or any other matters, please do not hesitate to contact the attorneys at The Royal Law Firm at 413-586-2288.

Brandon Calton admitted to the United States District Court of Connecticut

June 10, 2025
Brandon Calton is now admitted to the United States District Court, Connecticut! The Royal Law Firm is passionate about expanding our reach so that we can better serve our clients and their needs. Brandon is admitted in Massachusetts, the United States District Court of Massachusetts, and the United States District Court of Connecticut.

Federal Court Vacates EEOC’s “Abortion Accommodation Mandate” in PWFA

By Heather Child • June 9, 2025
On May 21, 2025, the U.S. District Court for the Western District of Louisiana struck down a provision in the Equal Employment Opportunity Commission’s (EEOC) final rule under the Pregnant Workers Fairness Act (PWFA), ruling that the agency exceeded its authority by requiring employers to accommodate elective abortions that are not medically necessary. Background Information: In June 2022, the U.S. Supreme Court issued a decision in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade and eliminated the constitutional right to abortion. Congress passed the Pregnant Workers Fairness Act in December 2022, and it became effective in June 2023. The law requires employers with 15 or more employees to provide reasonable accommodation to qualified applicants or employees who have physical or mental conditions related to pregnancy, childbirth, or related medical conditions, unless doing so would cause significant difficulty or expense for the employer. In April 2024, The EEOC issued its final interpretation of the PWFA including abortion in the definition of “pregnancy, childbirth, or other related medical conditions” thereby requiring employers to provide accommodations related to abortion. In May 2024, the states of Mississippi and Louisiana sued the EEOC, arguing that the interpretation conflicted with the U.S. Supreme Court’s Dobbs decision and their respective state laws on abortion. In June 2024, Judge Joseph found that the EEOC exceeded its authority and issued a preliminary injunction postponing the effective date of the interpretation to provide accommodation for elective abortions until final judgment was entered in this matter. The final judgment was entered on May 21, 2025, that remanded the matter to the EEOC to revise the final rule and all related implementing regulations and guidances. Employer Takeaways: While employers are no longer (as of now) REQUIRED to provide accommodation for elective abortions, the remainder of the PWFA remains in full effect The decision to have or not have an abortion remains protected under Title VII The PWFA does not supersede state or local laws providing greater protection for pregnant workers. It is important to stay up to date on state regulations to ensure employers are complying with state laws. While it is still unclear how this ruling will impact employers nationwide, it is still important to continue to stay up to date on ever-changing legislation.  If your business has any questions on this topic or any other matters, please do not hesitate to contact the attorneys at The Royal Law Firm at 413-586-2288.