A judge struck down a severance gag clause. Check yours before you sign.

Picture the timeline. Two employees deliver a union petition to management. Within hours, both are laid off. Then the company hands them severance agreements asking them to promise never to say anything bad about the company and to keep the deal secret. Tidy, if you're the company.

A federal labor judge says that tidiness broke the law. On Oct. 21, National Labor Relations Board Administrative Law Judge Robert A. Ringler ruled that Alina Lodge, a substance abuse treatment center in Blairstown, New Jersey, illegally laid off Edward Hilbrich and Anne Piazza, the lead organizers of a union drive with Health Professionals and Allied Employees, AFT/AFL-CIO. He also found that the severance agreement both workers were offered was illegal. If you're holding a severance packet right now, that second finding is the one to read twice.

The Clause That Ate Your Free Speech

Alina's agreement said the employee "agrees not to … disparage Employer, nor any individuals, products or services affiliated with Employer." Another clause required "strict confidentiality" about the agreement itself. Judge Ringler wrote that the first clause "broadly bans employees from disparaging Alina."

That matters because of a 2023 Board decision, McLaren Macomb, 372 NLRB No. 58. The Board held that simply offering a severance agreement that makes workers broadly give up their rights under the National Labor Relations Act is illegal, whether or not anyone signs. Those rights include talking with co-workers and the public about pay and working conditions. As then-Chairman Lauren McFerran put it, employers can't make workers "choose between receiving benefits and exercising their rights."

Judge Ringler ordered Alina to reinstate both organizers with backpay, recognize and bargain with the union, and stop offering agreements with "overly broad confidentiality and non-disparagement provisions." An administrative law judge's ruling is a recommendation, and the case was transferred to the Board the same day, so Alina can appeal there.

The Fine Print on the Fine Print

McLaren Macomb is still the law, but it is on thin ice. In February 2025, Acting General Counsel William Cowen rescinded the agency's guidance on severance agreements. Today's general counsel, Crystal Carey, has asked the Board to overrule the decision. In April, Board Chairman James Murphy and Member Scott Mayer said they would be "open to reconsideration" (NLRB summary), and since James Macy joined in August, Republicans hold the three seats usually needed to do it. As of today, they haven't.

It also doesn't cover everyone. The NLRA excludes supervisors, independent contractors, and government workers. If you managed people with real authority to hire, fire, or discipline, this rule probably doesn't protect you.

Protections Your Boss Can't Delete

Some rules don't depend on who sits on the NLRB.

• You can always go to the EEOC. The EEOC says provisions that try to stop you from filing a discrimination charge "are unenforceable." You can sign away your right to sue and still file a charge.
• Workers 40 and older get time. Under the Older Workers Benefit Protection Act, a valid waiver of age discrimination claims gives you at least 21 days to consider it (45 in a group layoff), 7 days to revoke after signing, and written advice to consult a lawyer. Group layoffs also require a list of the job titles and ages of who was picked and who wasn't. Severance.law has a full guide for workers over 40.
• Old gag clauses on harassment are weaker. The federal Speak Out Act makes nondisclosure and non-disparagement clauses signed before a sexual harassment or assault dispute arose unenforceable in court for that dispute. Think of the NDA in your hiring paperwork. It doesn't void a clause you negotiate after a dispute exists, so read new severance language carefully.

Your Pre-Signing Checklist

1. Don't sign on the spot. Ask for the deadline in writing.
2. Find the gag clauses. Search for "disparage," "confidential," and "cooperate." No time limit and no exception for talking to government agencies are red flags.
3. Look for a carve-out. A fair agreement says nothing in it stops you from filing a charge with or talking to the EEOC, NLRB, or other agencies.
4. Write down what happened. If you were laid off right after organizing or complaining, record the dates now. Alina's workers won partly because the timing told the story.
5. Negotiate. A first offer is a first offer. Here's how much to ask for, and the severance FAQ covers the rest.

If you think layoffs are coming, our guide to the warning signs helps you prepare, and here's why "at-will" doesn't mean what your boss thinks. This is general information, not legal advice for your situation. A short talk with an employment lawyer before you sign is cheap compared to what you might be giving up.

Sources

• Little Foundation for the Rehabilitation of Alcoholics d/b/a Alina Lodge, JD-69-26 (ALJ decision) — NLRB Research
• Case 22-CA-358049 docket — National Labor Relations Board
• 10/22/2026: Employer Text Message Was Threat Not Protected by Section 8(c) — NLRB Edge
• Board Rules that Employers May Not Offer Severance Agreements Requiring Employees to Broadly Waive Labor Law Rights — National Labor Relations Board
• GC 25-05 Rescission of Certain General Counsel Memoranda — National Labor Relations Board
• Summary of NLRB Decisions for Week of April 6-10, 2026 — National Labor Relations Board
• NLRB General Counsel Issues Memorandum Asking Board To Overturn Biden-Era Precedent — Benesch
• James Macy Joins the NLRB — CDF Labor Law
• 29 U.S.C. § 152 (Definitions) — Cornell Legal Information Institute
• 29 U.S.C. § 626 (OWBPA waiver requirements) — Cornell Legal Information Institute
• 42 U.S.C. § 19403 (Speak Out Act) — Cornell Legal Information Institute
• Q&A: Understanding Waivers of Discrimination Claims in Employee Severance Agreements — U.S. Equal Employment Opportunity Commission