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Can a severance agreement ask/force an employee to inform the ex-employer if they plan to disclose the severance agreement?

My understanding is that the National Labor Relations Act allows me to share the severance agreement with the goal of improving terms and conditions of employment. But it is not clear to me if I must share that activity with them, as part of the severance agreement.

  1. Acknowledgments and Affirmations.

    Employee also affirms that Employee has not divulged any proprietary or confidential information of REDACTED and will continue to maintain the confidentiality of such information consistent with REDACTED’s policies and Employment Agreement REDACTED and/or common law. Notwithstanding the foregoing or anything in this Agreement to the contrary, nothing in this Agreement prohibits or is intended to restrict or impede Employee from exercising protected rights under Section 7 of the National Labor Relations Act (“NLRA”) or otherwise testifying or participating in any investigation or proceeding by any governmental authorities regarding possible legal violations.

...

  1. Confidentiality and REDACTED.

    Employee agrees not to disclose any information regarding the underlying facts leading up to or the existence or substance of this Agreement and General Release, except to Employee’s spouse, tax advisor, and/or an attorney with whom Employee chooses to consult regarding Employee’s consideration of this Agreement and General Release.

    In the event Employee or Employee’s counsel believe either is compelled to provide or disclose information described in this paragraph, they will provide written notice of such belief, via email, to REDACTED, HR Specialist, [email protected], no later than seven (7) business days prior to said production or disclosure.

    This Agreement shall not be filed with any court and shall remain forever confidential except in an action to enforce or for breach of this Agreement.

    If Employee asserts an action to enforce this Agreement or for breach of this Agreement, Employee shall maintain such confidentiality by whatever means necessary, including, but not limited to, submitting the Agreement to a court under confidential seal.

I already asked for them to fix section 6, but they just added the extra clause in section 5, but now it conflicts even more. 😢

If I sign this, would I be required to provide written notice; or does NLRA protect me?

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  • The NLRA applies almost exclusively to unionized employees and employees seeking to form a union.
    – ohwilleke
    Sep 27, 2023 at 2:12

1 Answer 1

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When we talk about a "severance agreement", it usually means the employer pays you money that they are not legally required to pay, in exchange for you doing something they want. For example, promising not to sue them, agreeing to an NDA that you were not legally required to agree to, and so on.

Before you talk about that severance agreement with anyone, check first that you have a very good reason. Then read the agreement carefully and check if you can ask the old company for permission to disclose something (which they may deny) without any legal risk, and in that case, ask them. And without that permission, either don't disclose the agreement, or talk to a lawyer first.

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    TMK, that was true last year, but in Feb 2023, in a National Labor Relations Board (NLRB) ruling, employers can't use severance agreements to silence laid-off or furloughed employees. So, I should be able to share it without retaliation. But that ruling was not clear to me if that still allows employers to force disclosure. And that is where my question/confusion comes in. IMO, it would seem the same ethical/moral reasons above would apply to forced written notice/disclosure, but I also know that does not mean legal. 🤔
    – abaines
    Sep 26, 2023 at 22:58
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    Remember that you have the choice of not entering a severance agreement. Usually that means less money.
    – gnasher729
    Sep 27, 2023 at 10:47

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