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

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

This program is included with the Strafford CLE Pass. Click for more information.
This program is included with the Strafford All-Access Pass. Click for more information.

Wednesday, October 25, 2023

1:00pm-2:30pm EDT, 10:00am-11:30am PDT

or call 1-800-926-7926

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 has scrutinized and will continue to be critical of clauses that prohibit employees from cooperating with others filing a charge of discrimination or lawsuit. Similarly, OSHA will not approve settlement agreements that prohibit or restrict employees from participating in protected activity.

Adding to the pressure, in its recent McLaren Macomb decision, the NLRB has determined that certain non-disparagement and confidentiality provisions in severance agreements are unlawful. Moreover, the NLRB's General Counsel released a memo in May 2023 claiming that most employee noncompetition covenants, including those in severance agreements, violate Section 8 of the NLRA.

In light of 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 NLRB developments and recommends tactics for drafting enforceable agreements.



  1. SEC challenges to severance agreements
  2. EEOC and OSHA 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. Noncompetition 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 non-cooperation, confidentiality, or non-disparagement provisions?
  • How must confidentiality and severance agreements be updated given the NLRB's recent activity?
  • What are the NLRA provisions on which the NLRB is basing its recent decisions?
  • 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?


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

Prokott, Daniel
Daniel G. Prokott

Faegre Drinker Biddle & Reath

Mr. Prokott advises businesses regarding complex workplace matters. He represents employers of all sizes, including...  |  Read More

Zwisler, David
David L. Zwisler

Ogletree Deakins Nash Smoak & Stewart

Mr. Zwisler’s broad range of labor and employment experience includes overseeing and conducting comprehensive...  |  Read More

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