Updated your separation agreement template since 2023?
A ruling you've likely never heard of limits some of its key terms. That may soon change.
The ruling, McLaren Macomb, didn't come from a court. It came from the National Labor Relations Board, the federal agency that administers our main labor law.
Most people know the NLRB for union matters. But the statute it enforces, the National Labor Relations Act, also protects most private-sector employees, unionized or not, when they act together, or even just talk together, about pay and working conditions. That's how a "union law" decision reaches non-union companies.
What McLaren held: simply offering a rank-and-file employee a separation agreement with either of two provisions can be an unfair labor practice. The first is a confidentiality clause barring the employee from discussing the agreement's terms, including how much they were paid to leave. The second is a non-disparagement clause broad enough to bar truthful criticism of the company, its business, or its people. (A clause limited to knowingly false statements is on much safer ground.)
Note the word "offering." A company can get in trouble without ever trying to enforce these terms. No fines, but there can be an unfair labor practice charge, an investigation that can drag on for months, legal fees, and an order voiding the clauses. The reasoning: such clauses tend to discourage employees from talking with co-workers about how they're treated.
In August, the NLRB's General Counsel, Trump's pick to replace Biden's appointee, issued a memo targeting more than a dozen Biden-era decisions for reversal, McLaren among them. She has already filed a brief asking the Board to overrule it. With the Board now holding a Republican majority, a reversal looks likely.
Unlike a court, the Board's majority turns over with the White House, so its big calls swing far more easily. McLaren itself reversed a Trump-era rule.
So should you rewrite your template now? Draft it, sure, but don't use it yet. Two reasons.
One: a General Counsel's memo isn't law. Until the Board overrules McLaren in a case, McLaren is the law. The case teed up to do that is already fully briefed, so a decision could come sooner than the one to two years some firms expect for the rest of her list. But there's no deadline.
Two: a reversal won't give you a clean slate. It would let you use these clauses again with rank-and-file employees (genuine supervisors were never covered), but state law still limits them. New York, California, Washington and others restrict NDAs around discrimination and harassment, and in late 2023 New York also barred clawbacks and liquidated damages for breaching NDAs in settlements of those claims. The federal Speak Out Act adds limits for sexual-harassment claims.
Until the Board acts: draft, don't deploy. When you do switch, make sure the new template complies with state law, as of that day, wherever your people work.
For a closer look at the original ruling and the NLRB General Counsel's effort to overturn it, see the sources below.
Sources:
McLaren Macomb, 372 NLRB No. 58 (Feb. 21, 2023):
https://apps.nlrb.gov/link/document.aspx/09031d45839af64d
NLRB General Counsel's brief urging the Board to overrule McLaren, filed May 5, 2026 in Valley Radiology, P.A., Case No. 10-CA-324512:
http://apps.nlrb.gov/link/document.aspx/09031d4584274894
As of this writing, the NLRB has not ruled in this matter.
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