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

Recording of a 90-minute CLE webinar with Q&A

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Conducted on Thursday, October 29, 2020

Recorded event now available

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Course Materials

This CLE course 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 specific 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?
  • What are the NLRA provisions on which the NLRB is challenging employment agreements that include non-disparagement and employee behavior provisions?
  • What confidentiality provisions run afoul of OSHA's position on confidentiality provisions?
  • What internal process changes can companies make to effect similar results as nondisclosure agreements?


Dolghih, Elisaveta
Elisaveta (Leiza) Dolghih

Lewis Brisbois Bisgaard & Smith

Ms. Dolghih concentrates her practice on a broad range of business and employment litigation matters, with a focus on...  |  Read More

Koss, Natalie
Natalie M. Koss

Managing Partner
Potomac Legal Group

Ms. Koss actively litigates both commercial and employment cases and has successfully negotiated settlement agreements...  |  Read More

Love, Francine
Francine E. Love

Founder & Managing Attorney

Ms. Love is experienced in commercial transactions, corporate fundraising, mergers and acquisitions, intellectual...  |  Read More

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