In this regard, the NLRB has held that an employer, even in a non-union atmosphere, cannot maintain an overly broad confidentiality provision which has the effect of interfering with employee rights under section 7 of the NLRA. The Board looks at the confidentiality agreement in its entirety.

For example, in Heritage Lakeside, the Board held that an employee handbook provision prohibiting the disclosure of salary or wage information was unlawful under Boeing Category 3.1 In addition, the use of the phrase “Confidential - For Internal Use Only” as a footer on each page of an employee handbook was found to be unjustified and unlawful under Category 3.2

The NLRB recently ruled that the overly broad confidentiality and non-disparagement provisions in employment severance agreements are unlawful under the NLRA, which applies to most employers, even if not unionized — and even the mere offer of a severance agreement with these provisions violates the NLRA, regardless of whether the employee entered into the agreement.3

• In February 2025, Acting General Counsel Cowan rescinded General Counsel Memorandum 23-05, which formerly provided Regions with a framework to facilitate finding violations under McLaren Macomb, thus signaling this area of the law may change under the Trump administration in the future.

• Employers, both with and without union employees, may want to revisit their confidentiality policies to modify language that may be construed as restricting section 7 rights.

1. Heritage Lakeside, 369 N.L.R.B. No. 54 (April 9, 2020)