Drafting Severance and Confidentiality Agreements Amid Continued SEC, EEOC and NLRB Scrutiny

Avoiding Agency Challenges to Confidentiality/Whistleblower, Non-Disparagement, Cooperation, No Rehire, Covenants Not to Sue, and More

A live 90-minute CLE webinar with interactive Q&A

Tuesday, October 24, 2017
1:00pm-2:30pm EDT, 10:00am-11:30am PDT

Early Registration Discount Deadline, Friday, September 29, 2017

This CLE webinar will provide practical guidance on drafting severance and confidentiality agreements that will withstand heightened SEC, EEOC, NLRB and OSHA scrutiny. Our experienced panelists will discuss how to update or avoid contract provisions to minimize the likelihood of suits or agency challenges.


Federal agencies continue to target provisions of employer confidentiality and severance agreements that they believe are overly broad or restrictive.

The SEC has banned severance agreements that prohibit employees from contacting regulators or accepting whistleblower awards in exchange for receiving severance payments or other post-employment benefits.

Further, the EEOC rejected previously endorsed language in severance agreements. Counsel to employers have relied on the EEOC’s prior approval of language in its 2006 consent decree with Kodak when drafting severance agreements.

Adding to the pressure, the NLRB has expressed concern with confidentiality agreements that prohibit employee communications. The NLRB has determined certain confidentiality provisions are an unfair labor practice under Section 8(a)(1) of the NLRA.

In light of the increased SEC, EEOC, NLRB and OSHA scrutiny, employment and corporate counsel must guide employers in drafting severance and confidentiality provisions that will withstand the heightened enforcement standards and decrease the likelihood of litigation.

Listen as our distinguished panel discusses recent SEC settlements, EEOC charges and case law developments, and recommends tactics for drafting enforceable agreements.


  1. SEC challenges to severance agreements
  2. EEOC requirements and legal framework for severance agreements
  3. NLRB requirements and legal framework
    1. Confidentiality provisions
    2. Employee behavior and conduct policies
    3. Non-disparagement provisions
  4. Drafting best practices


The panel will review these and other key issues:

  • What should employers do to avoid or withstand SEC challenges to severance agreements?
  • How can counsel to employers respond to the EEOC’s concern with the once-acceptable language in the Kodak consent decree?
  • How must confidentiality agreements be updated given the NLRB’s announced concerns?
  • Under what provisions of the NLRA is the NLRB challenging employment agreements that include non-disparagement and employee behavior provisions?
  • What confidentiality provisions run afoul of OSHA's position on confidentiality provisions?


Jonathan D. Ash, Partner
Fox Rothschild, Lawrenceville, N.J.

Mr. Ash handles employment litigation and counsels clients on a variety of employment issues, including leave entitlement, separation and severance, litigation avoidance, employee handbooks and wage and hour issues. He also has experience in forensic analysis, with a particular emphasis on investigating and litigating claims of misappropriation of trade secrets. 

Frank C. Morris, Jr., Member
Epstein Becker & Green, Washington, D.C.

Mr. Morris leads the firm’s Employment, Labor and Workforce Management Practice in the Washington, D.C., office, and co-chairs the firm's ADA and Public Accommodations Group. A former NLRB attorney, he now represents private and public employers in EEO, disability, labor, and general litigation matters. Mr. Morris regularly writes and lectures on various employment and litigation topics and is an adjunct professor at George Washington University Law School, where he teaches Discrimination Law.

Todd D. Wozniak, Shareholder
Greenberg Traurig, Atlanta

Mr. Wozniak is Co-Chair of the firm’s National Labor & Employment Practice’s ERISA Litigation team and is experienced in ERISA and employee benefits litigation. He is also experienced in wage and hour litigation, state and federal whistleblower statutes, non-discrimination laws, plant closing and mass layoff laws, collective bargaining, executive contracts and compensation, noncompete and trade secrets litigation, among others. Mr. Wozniak is a frequent lecturer and writer on a wide range of employment and business related issues.

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Customer Reviews

I thought the program was very informative--even to an experienced practitioner.

Jennifer Oldvader

The program included very good drafting tips plus good questions were addressed by the speakers giving us multiple points of view.

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The webinar was very comprehensive and will be useful for my clients.

Alicia Johnson

The subject matter presented was very relevant to my practice.

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