Lawyers Unsure Whether Workers Who Agreed Not To Can Now Disparage Former Bosses

The National Labor Relations Board ruled this week that it was unlawful to ask laid-off employees to sign non-disparagement clauses—and otherwise keep the terms of their severance agreements secret—as part of their exit packages. So much as offering such agreements, even if they are not signed, is now unlawful, according to the ruling. 

The news caused celebration among many, who felt that such stipulations had unfairly muzzled workers and otherwise infringed on their free speech by dangling a few more weeks or months of stability in front of them at a moment of deep financial uncertainty and insecurity in exchange for their perpetual silence about any negative experiences they may have had. Doing so was coercive and in violation of the law, according to the federal agency.

But it also led to a natural follow-up question: What does this mean for the people who already signed such non-disparagement clauses but deeply want to disparage their terrible former bosses?  

Frustratingly, as of now, the answer is unclear, almost chaotically so, according to our conversations with employment lawyers, who often disagreed as to the correct answer. (For its part, the NLRB itself would not give Motherboard a straight answer on the record.)

Feeling newly emboldened to talk about your former boss? We want to hear from you. From a non-work device, contact our reporter at maxwell.strachan@vice.com or via Signal at 310-614-3752 for extra security.

Alex Granovsky, an employment lawyer based in New York, for example, said rather definitively that the ruling does not apply retroactively as the board’s decision is only forward looking. “It would not invalidate these prior agreements,” Granovsky said. Kate Bischoff, an employment law attorney and human resources consultant in Minneapolis, similarly said that, technically speaking, “the legal principle is that it does not retroactively apply.” 

Seems cut and dry, no? No. Bischoff then continued, “In practical reality, is that really going to be the case? We don't know yet.” An employer could theoretically sue for a breach of contract, but the employee would have a “pretty good argument that the provision was unlawful,” according to Bischoff, who added: “If an employee goes out and says some bad things, whether or not an employer is going to be successful at enforcing the agreement is another thing entirely.” 

OK, so, legally it does not retroactively apply, but practically it might? Nope, said Glenn Grindlinger, another New York employment lawyer, who then said that when the NLRB board issues decisions, “they almost always apply retroactively.” When Motherboard expressed confusion about the different interpretations, Grindlinger said, “Typically,  changes in the law do not apply retroactively. But the National Labor Relations Board does not follow that. It is very rare for a National Labor Relations Board decision not to apply retroactively.”

So, legally speaking, it either does retroactively apply, or it does not, but it is one or the other? “Unfortunately, I think the answer is that we don’t know,” said Charlotte Garden, a law professor at the University of Minnesota who focuses on worker rights. The ambiguity only gets worse from there. Unlike Granovsky and Bischoff, but like Grindlinger, Garden suggested that NLRB rulings “normally” do apply retroactively so long as doing so would not be unduly unfair to either employers or employees. However, in such cases, the NLRB typically addresses the issue of retroactivity specifically. In this case, she said, the board did not, which suggests the NLRB is waiting to address the issue through a relevant future case.  

Tuesday’s decision reversed a pair of Trump era rulings in 2020 that temporarily made non-disparagement clauses legal. Before then, the “longstanding precedent” had been that workers were free to publicly discuss their issues with their past employers and the terms of their severance agreements. Notably, that did not stop employers from asking laid-off employees to sign unlawful agreements not to talk about either.

The ruling puts both employees laid off between 2020 and this week and the employers who let them go in an uncomfortable position for now. Laid-off employees might risk legal action should they break the terms of a severance agreement by speaking out, but employers could also lose in court if they tried to enforce a potentially illegal contract. 

Some are already weighing taking action on behalf of laid-off workers who have signed non-disparagement pacts—or already doing so. Lioness, a company that helps whistleblowers tell their stories, is offering to connect laid-off employees with employment law partners to have their severance agreements reviewed for free. Lisa Bloom, the celebrity attorney who is representing 100 laid-off Twitter workers, told Motherboard she is “looking closely” as to whether to pursue action through the NLRB on behalf of any of her clients. 

Until Tuesday's decision, non-disparagement clauses were often successful in preventing workers from speaking to the press or otherwise speaking out about negative experiences they had at work. Bloom said many people come to her hoping to be a witness in a case but are worried about the non-disparagement clauses they’ve signed. “Non-disparagement is something that I have to deal with every day in my law practice,” she said. “They don't want to get sued by their prior employer.”

“Silencing workers just helps companies do bad things,” Bloom continued. “So I really appreciate that the NLRB gets that and issued this very strong decision in favor of free speech for employees.” 

There could be negative externalities for workers as a result of the decision. A lack of non-disparagement clauses moving forward could give companies less reason to offer severance, as one of the primary reasons companies can be willing to enter into such agreements is to keep existing employees quiet. “Silence is important [to companies],” Granovsky said. “That's valuable, especially when you have an employee that's unhappy.” Taking the perspective of an employer, Granovsky added, “"Part of what I'm paying for is I want you to shut up."

Granovsky added that employees are always able to report illegal conduct by the employer, disparagement clauses or not, and companies will still have legal tools at their disposal, like suing for defamation, slander, and libel. “All of these remedies exist and are utterly unchanged by the nature of the ruling,” said Granovsky.

An answer is likely coming on the issue of retroactivity, but it might have to pass through the legal system. Notably, the NLRB has a six month statute of limitations on charges, so if a signed a severance agreement within the last six months that included a non-disparagement clause, they could now theoretically file a charge (though the employer could counter and say that they added the clause when doing so was still legal). What happens in that particular case has yet to be determined, like seemingly everything else.