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McKnight’s Editorial Director John O’Connor
John O'Connor
John O’Connor

Thou shalt not disparage thy employer.

It’s not just Old World dictate. In fact, restrictions to that effect appear in many a severance agreement still used by senior living organizations. But that is about to change.

Earlier this week, the National Labor Relations Board determined that employers insisting on such post-employment silence are breaking the law.

The NLRB’s latest decision is tied to a Michigan hospital that terminated 11 workers during the height of the COVID-19 pandemic. To receive severance payments, the affected employees were required to sign agreements that prohibited future statements about the hospital that might “disparage or harm.”

Funny enough, when a Republican president was in the White House two years ago, the NLRB was singing a very different tune. Back then, the board twice ruled that such limits were legal.

But now that the other political party controls the NLRB, such reasoning is out the window. The board’s new majority now claims workers cannot waive their rights under federal law.

“We therefore overrule both decisions and return to the prior, well-established principle that a severance agreement is unlawful if its terms have a reasonable tendency to interfere with, restrain, or coerce employees in the exercise of their Section 7 rights,” the board said this week.

Why does the NLRB appear to be so wishy-washy? In a word: politics: You see, its five members are nominated by the president. As goes the talking points of the president’s party, so goes the rooting by NLRB members.

To say constant revisions to labor rules are stressful for senior living operators would be extreme understatement. Moreover, what good are rules and regulations if they are seemingly at the mercy of whoever is temporarily in charge?

Under such circumstances, compliance can be a shifting and monumental challenge.

But there may be a silver lining here for operators. If you don’t like an NLRB ruling, just be patient. There’s a good chance it won’t be around for long.

John O’Connor is editorial director for McKnight’s Senior Living and its sister media brands, McKnight’s Long-Term Care News, which focuses on skilled nursing, and McKnight’s Home Care. Read more of his columns here.

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