Workers have the right to organize themselves in order to bargain collectively with their employers and advocate for better working conditions. Federal and New Jersey employment laws protect these rights and prohibit employers from interfering with or retaliating against employees who are engaged in lawful activities. The National Labor Relations Board (NLRB) adjudicates disputes over alleged violations of federal labor laws. In February 2023, it issued a ruling that invalidates a non-disparagement clause that an employer included in severance agreements for a group of employees it had just laid off. The NLRB found that the employer could not require workers to waive such a large number of legal rights. The following month, the NLRB’s General Counsel (GC) issued a memorandum providing guidance to NLRB directors and officers on how to implement this decision.
Section 7 of the National Labor Relations Act (NLRA) identifies a broad range of rights enjoyed by workers. This includes “the right to self-organization” and to join or form a labor union for the purpose of collective bargaining. The section also states that workers have the right to engage in “other concerted activities for the purpose of…mutual aid or protection.” The NLRB and the courts have interpreted this as providing rather broad protection of workers’ right to communicate among themselves and with others about various features of employment, such as working conditions and wages.
The case recently before the NLRB involved a hospital and a union representing various service employees. The hospital furloughed numerous employees at the beginning of the COVID-19 pandemic in 2020. It made the temporary furlough permanent for eleven union members later that year. Each of these employees received a “Severance Agreement, Waiver and Release” that offered a severance package in exchange for their signature. According to the NLRB’s ruling, the hospital did not inform the union of the furloughs or the severance agreements.