Over 7,200 former Meta employees' confidentiality agreements found unlawful

The National Labor Relations Board (NLRB) has thrown out Meta's non-disparagement and confidentiality agreements with over 7,200 former employees. It turns out that barring workers from criticising a company can have an unlawfully negative effect on their ability to unionise.

In a 19-page ruling on Friday, NLRB judge Andrew S. Gollin found that the non-disparagement and confidentiality sections in Meta's separation agreements unlawfully restricted workers' legally protected right to organise. This case particularly concerned over 7,000 former Meta employees who were laid off during its 2022 mass layoffs, the vast majority of whom had signed the 11-page separation agreement offered by the company.

Under this separation agreement, employees who were laid off would receive "enhanced severance pay" and other benefits. In exchange, they were prohibited from disparaging, criticising, or making "otherwise detrimental comments" about any of Meta's products, its "business affairs, operation, management and financial condition"; or the circumstances in which they left the company formerly known as Facebook. The separation agreement further stipulated that former employees were not permitted to disclose the agreement's terms.

These non-disparagement and confidentiality sections were accused of interfering with workers' rights to unionise, as Meta had put in place "rules that prohibit employees from discussing wages, hours, or other terms or conditions of employment."

The NLRB has now agreed with this assessment, finding that Meta used "overly broad" language in these sections of the separation agreement. Gollin considered that Meta's non-disparagement and confidentiality restrictions prohibited former employees from raising workplace concerns with co-workers, labour organisations, or the public, preventing them from finding support when dealing with labour disputes. These restrictions would also apply even if former employees' statements were truthful.

"This prohibition… reasonably would tend to discourage protected conduct, including making comments to seek the assistance and support of other employees or third parties regarding labor disputes or issues related to terms and conditions of employment with [Meta]," wrote Gollin.  

"[P]ublic statements by employees about the workplace, their employment, or their separation are central to the exercise of [workers' rights to unionise]. The sections at issue prohibiting disclosure or commentary… are unlawful because they discourage statutorily protected communications with others, including the public."

The NLRB ordered Meta to stop entering into separation agreements with "unlawfully overbroad'' non-disparagement or confidentiality sections, as well as notify everyone who agreed to such clauses that these sections have been rescinded. Meta must also distribute a notice to employees informing them of their right to unionise under the National Labor Relations Act, and stating that the company will not interfere with such organisation.

As it currently stands, it looks as though Meta has a lot of emails to send. However, the company did confirm to Mashable that it intends to appeal. Meta took particular objection to the judge's application of a Feb. 2023 finding that severance agreements cannot waive employees' rights under the National Labor Relations Act. In his judgement, Gollin noted that retroactive application of law in unfair labour practice cases was the NLRB's "usual practice" unless it would cause "manifest injustice."

Notably, said 2023 case reinstated longstanding precedent which had only been overturned three years prior.

"Meta disagrees with the judge's decision and, in particular, the decision to retroactively apply a new legal standard," said a Meta spokesperson. "Meta does not have a crystal ball allowing it to foresee when or how the National Labor Relations Board will decide to change the law, and as the judge specifically found in his decision, Meta did not violate the law in effect at the time the company offered the separation agreements."

Basically, while Meta did impede worker's rights, it intends to argue that doing so technically wasn't unlawful at the time.

Meta is just the latest tech giant to fall afoul of the NLRB this year. In January the NLRB filed a complaint against SpaceX, alleging unfair labour practises and unlawful dismissal. In response, SpaceX accused the watchdog of being unconstitutional because the U.S. president can't fire NLRB judges without cause.

UPDATE: Jul. 24, 2024, 11:06 a.m. AEST This article has been updated with comment from Meta.