Over the last few years the National Labor Relations Board (NLRB) has persistently scrutinized employer handbooks and policy manuals to see if any provision contained therein violates the National Labor Relations Act (NLRA). In continuation with these efforts, the General Counsel for the NLRB recently issued a report to offer guidance to employers to aid in creating handbook provisions that will withstand the NLRB’s scrutiny and help employers identify the types of policies that the General Counsel believes may have a chilling effect on employees’ concerted activities protected by Section 7 of the NLRA.
The 30-page report addresses what the General Counsel calls as an “evolving area of labor law,” and attempts to explain several years of NLRB decisions and positions taken by the General Counsel’s office. However, because the decisions and positions have often been inconsistent, the guidance provides few bright lines for employers to follow.
The report discusses various types of workplace rules including confidentiality policies. For instance, overall, employees have a Section 7 right to discuss wages, hours, and other terms and conditions of employment. Thus, an employer’s confidentiality policy that either specifically prohibits employee discussions of terms and conditions of employment, or that employees would reasonably understand to prohibit such discussions, violates the NLRA. The General Counsel provides various examples and explanations of examples of confidentiality policies found to be unlawful overbroad:
- Do not discuss “customer or employee information” outside of work, including “phone numbers [and] addresses.”
- “You must not disclose proprietary or confidential information about [the Employer, or] other associates (if the proprietary or confidential information relating to [the Employer’s] associates was obtained in violation of law or lawful Company policy).”
The report also provides example of confidentiality policies found to be facially lawful by the General Counsel:
- No unauthorized disclosure of “business ‘secrets’ or other confidential information.”
- “Misuse or unauthorized disclosure of confidential information not otherwise available to persons or firms outside [Employer] is cause for disciplinary action, including termination.”
- “Do not disclose confidential financial data, or other non-public proprietary company information. Do not share confidential information regarding business partners, vendors or customers.”
For more information, contact the Association’s Legal Services Division at 814/833-3200, 800/815-2660 or tlamary@mbausa.org.
