Will the New NLRB Sever from Severance Agreement Precedents on Gag Clauses?

On December 28, 2025, the U.S. Senate confirmed President Donald Trump’s two nominees to the National Labor Relations Board (NLRB), as well as his NLRB general counsel pick, restoring a quorum with a 2-to-1 Republican-to-Democrat balance on the 5-member NLRB, with the remaining 2 board spots vacant. Now that the NLRB can get to work for the first time since January 2025, and with a Republican majority for the first time since 2021, is it just a matter of time before employee-friendly precedents from the President Biden era — such as the one against gag clauses in severance agreements — find themselves on the chopping block? A recent decision may provide the first vehicle to test how swift this new NLRB will act to dismantle these precedents.

Valley Radiology and the McLaren Macomb Precedent

The National Labor Relations Board (NLRB) recently decided Valley Radiology, P.A. (March 2026), ruling that a North Carolina radiology practice’s severance agreement with a physician contained non-disparagement and confidentiality provisions in violation the National Labor Relations Act (NLRA). The provisions employed broad but familiar language:

Non-disparagement. “Employee will not say, write, or do anything (to include causing others to say, write, or do anything) to disparage or defame Company . . . . Further, Employee will not knowingly say, write, or do anything (to include causing others to say, write, or do anything) that is likely to injure or harm Company or its relationships with current or prospective employees, limited partners, investment funds, current or targeted portfolio companies, clients, vendors, or the public; except . . . to enforce this Agreement or when called upon by subpoena or court order to testify or provide information in a legal or administrative proceeding.”

Confidentiality of Agreement. “Employee agrees that the terms of this Agreement are strictly confidential. Employee agrees that Employee will not disclose the fact or contents of this Agreement, including the amount of monetary payment, to anyone other than Employee’s attorneys, financial advisers, government taxing authority, or Employee’s spouse or partner, or as part of Employee’s application for unemployment benefits, pursuant to an appropriate order from a court or other entity with competent jurisdiction, or as otherwise allowed under applicable law.”

Following a precedent set in 2023 by the McLaren Macomb decision, the Administrative Law Judge concluded that merely proffering these provisions to a severing employee has “a reasonable tendency to interfere with, restrain, or coerce employees who may engage in activities protected by Section 7 [of the NLRA],” which guarantees “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”

Although the NLRB won on the merits, it lost on its preferred remedy. In particular, the NLRB wanted to force the employer to reoffer the severance agreement without the offending gag provisions but with all the other terms originally offered, including one permitting the ex-employee to keep her unearned signing bonus. The ALJ ruled that remedy would be an unwarranted infringement on the right to contract because the employer’s labor violation stopped at the overbroad gag provisions and had nothing to do with the signing bonus terms. The employer was then given 14 days to offer a new severance agreement without the gag provisions. The employer may now file exceptions challenging the ALJ’s decision directly with the NLRB’s three members, and it noted its intent to do just that, with the McLaren Macomb decision in its crosshairs.

The McLaren Macomb Precedent

Valley Radiology is the latest progeny of McLaren Macomb, handed down in 2023 by a Biden-era Democratic-majority NLRB. McLaren Macomb held that severance agreements with broad non-disparagement and confidentiality clauses are unlawful because such provisions tend to interfere with or restrain employees’ Section 7 rights under the theory that such gag provisions could discourage workers from discussing wages or workplace conditions, cooperating with the NLRB, or reporting potential labor law violations. This decision overruled two 2020 Trump-era NLRB cases that had permitted restrictions including gag provisions in severance negotiations on the theory that such constraints addressed only post-employment matters, not working conditions.

NLRB Memorandum Whiplash

Shortly after McLaren Macomb, NLRB general counsel issued Memorandum GC 23‑05 directing aggressive enforcement of the new ruling to ensure gag clauses in severance agreements were narrowly tailored (for instance, barring disclosure of proprietary business information). GC 23-05 also took the position that McLaren Macomb applied retroactively and urged employers to proactively alert previously severed employees to mitigate enforcement risk. In short order, however, the incoming President Trump installed a new NLRB general counsel, who made quick work to issue Memorandum GC 25-05, rescinding GC 23-05 and numerous other Biden-era memoranda. But while the recission signals that the NLRB’s priorities will shift away from prosecuting overbroad gag provisions in severance agreements, the recent Valley Radiology decision shows that ALJs will continue to follow McLaren Macomb in cases pending or brought in the future.

Bottom Line

For now, McLaren Macomb remains a live precedent, and employers should continue to be mindful of the risks of ignoring its directive to narrowly tailor gag clauses in severance agreements. Yet, how much life McLaren Macomb has left is an open question. If the employer in Valley Radiology follows through on seeking McLaren Macomb’s overturning before the NLRB, the answer might be not that long. That said, the new Trump-appointed members told senators during their confirmation hearings that they would respect the NLRB’s institutional traditions, which includes not overturning precedents without three votes. And, so, McLaren Macomb may be allowed to linger on borrowed time until the Senate confirms another Trump nomination. Of course, employers must also weigh the possibility that McLaren Macomb finds a way to survive, and must also not forget to check local and state laws that may separately bar broad gag orders, even if the NLRB severs McLaren Macomb. As always, if you have questions on the status of McLaren Macomb, the enforceability of your gag clauses in past severance agreements, or how state or local law regulate those clauses, consult with a qualified labor & employment counsel.

This article, slightly modified to note recent updates, was featured online in the Wisconsin Employment Law Letter and published by BLR®—Business & Legal Resources. Reproduced here with the permission of BLR®—Business & Legal Resources.