NLRB Maintains McLaren Severance Agreement Standard for Now, But Board Nomination Signals Potential Shift

By Rachel Domash and R. Jason Patterson - Franczek P.C.

April 14, 2026

On April 7, 2026, the National Labor Relations Board issued its decision in Prime Communications, LP, reaffirming the Board’s 2023 decision in McLaren concerning severance agreement confidentiality and non-disparagement provisions. While the decision reinforces existing substantive law, the key takeaway is that the Board declined to revisit the McLaren standard because it lacked the three-member majority traditionally needed to overturn existing precedent.

The Board’s Decision

In Prime Communications, the Board applied McLaren, a significant 2023 decision holding that merely offering a severance agreement with overly broad confidentiality or non-disparagement provisions may violate the National Labor Relations Act. Applying that standard, the Board found Prime Communications violated Section 8(a)(1). The Board ordered Prime Communications to rescind the unlawful provisions, notify affected former employees, and post a remedial notice.

Notably, Chairman Murphy and Member Mayer stated they remain open to reconsidering McLaren in an appropriate future case but joined the decision because no three-member majority existed to overrule or modify precedent. The Board’s decision in Prime Communications reflects the continued adherence to the Board’s longstanding practice of reserving reversals of precedent for cases in which a three-member majority supports such action.

Potential Shift Ahead

President Trump has nominated James Macy to fill the Board’s vacant seat. If confirmed, the Board would likely have the three-member majority needed to reconsider precedent such as McLaren.

Practical Impact for Employers

For now, Prime Communications confirms that McLaren remains controlling Board law. Accordingly, employers should continue to exercise caution when using severance agreements containing broadly drafted confidentiality or non-disparagement provisions. That said, the Board reiterated that narrowly tailored provisions, such as confidentiality clauses limited to trade secrets or settlement amounts, or non-disparagement clauses confined to defamatory statements, may still be permissible.

Employers should continue evaluating severance agreements and labor practices based on existing Board law.

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