Texas' strong public policy protecting the freedom of contract is firmly rooted in the state's jurisprudence. See Philadelphia Indemnity Insurance Co. v. White, 490 S.W.3d 468, 471 (Tex. 2016). Absent a compelling reason, courts must honor and enforce the terms of contracts that parties have voluntarily and freely entered. In recent years, the federal government has limited this freedom of contract in the employment context through statutes and agency activity.

In 2022, Congress passed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021, which gives individuals asserting sexual harassment and sexual assault claims under federal or state law the right to opt out of a pre-dispute arbitration agreement and bring those claims in court. See 9 U.S.C. §§ 401, 402. Earlier this year, the Federal Trade Commission proposed a rule that would make it an unfair method of competition for an employer to maintain, enter into, or attempt to enter into a non-compete clause with certain workers. This proposed rule would supersede all inconsistent state laws and regulations. And, last month, in McLaren, a 3-1 majority of the National Labor Relations Board (NLRB or Board) overruled prior Board precedent and held that an employer violated the National Labor Relations Act (NLRA) by offering a severance agreement with non-disparagement and confidentiality provisions that would prohibit permanently furloughed employees from disclosing the terms of the severance agreement and making harmful or disparaging remarks about the employer. McLaren Macomb & Local 40 Rn Staff Council, Office & Prof'l Employees, Int'l Union (Opeiu), Afl-Cio, 372 NLRB No. 58 (Feb. 21, 2023). This article focuses on the recent NLRB decision.