HOUSTON — Several recent and pending decisions by the National Labor Relations Board have significant implications for employers in the hospitality space.

Speaking at the Hospitality Law Conference, Robert Bernstein, partner at Laner Muchin, said he couldn't remember a time before when there were so many changes under the NLRB.

"It's an area ... where there's so much activity and so much change to be had in the future under this administration," he said.

In February, the NLRB reversed decisions in two 2020 cases regarding the inclusion of non-disclosure and non-disparagement requirements in severance offers, Bernstein said.

In its McLaren Macomb decision, the board ruled that “the mere proffer or offer of a severance agreement to employees on their way out, if it contains overbroad confidentiality or overbroad non-disparagement language, is violative of the National Labor Relations Act.”

The decision doesn’t mean employers can’t use severance agreements, not that they can’t include confidentiality or non-disparagement provisions in those agreements, Bernstein said. But employers should review severance agreements for broadly sweeping language regarding those two provisions.

Confidentiality provisions should be limited to protecting trade secrets and proprietary information, he said.

As for non-disparagement, the standard now is going to be non-defamation, Bernstein said.

“You want it to talk about how they can’t defame the employer, and that means making maliciously false statements about the employer,” he said.

Severance agreements are different from settlement agreements, Bernstein said. It’s unclear whether the severance agreement can prevent the recipient from disclosing a severance payment. Employers can still require confidentiality regarding the amount to be paid in a settlement agreement, however.

Employers should have two different versions of severance agreements, he said. One should be for management and the other for employees who are not managers or supervisors.

“You have more latitude in the management versions,” he said.

For the six-month period between October 2022 and March 2023, the NLRB took on approximately 1,300 more cases than it did the previous year, Bernstein said. The number of union election petitions to represent workers has increased. In the past six months, workers have filed about 400 unfair labor practice charges against Starbucks, Amazon and Apple alone.

“If this isn’t a sign of what’s coming, at least as of now under this administration, I’m not sure what is,” he said.

In a collective bargaining dispute at a hotel in New York, the NLRB told the hotel it couldn’t hold off on discussing economic issues until settling non-economic issues. In another case, the NLRB ruled that a hotel in Hawaii had an obligation to respond to the union’s request for information about housekeepers’ cleaning schedules during bargaining.

In April 2022, the NLRB general counsel released a memo, asking the NLRB to find that captive audience and other mandatory meetings are a violation of the National Labor Relations Act.

As of now, an employer can hold a captive audience meeting with employees after a union files a petition to represent workers, Bernstein said. There are some restrictions, such as it can’t be held within 24 hours of the elections and the employer can’t say anything unlawful.

The NLRB’s general counsel wants the board to determine that these captive meetings must be voluntary, he said. Employers who want to hold these meetings would have to make it clear to employees that the meetings are not mandatory to attend.

“Captive audience speeches are going to have to be voluntary, which would be a big blow to the sometimes uphill battle that employers have, especially in this climate where the popularity of unions is by and large at an all-time high compared to what they’ve been in other time frames,” he said.

The NLRB would also consider ruling on what employers can say during these meetings, he said. Currently, employers are allowed to talk about how unionization could lead to having to bid higher and customers canceling orders, resulting in a loss in business.

Read more news on Hotel News Now.