NLRB STRIKES DOWN COMPANY’S CONFIDENTIALITY POLICY

In prior Employment Law Alerts, we have addressed efforts by the current National Labor Relations Board (NLRB) to carefully scrutinize the provisions of company’s employee handbooks.  One of the areas that it scrutinized most heavily by the NLRB is the use of confidentiality provisions limiting information which can be shared by employees.  

In Fresh & Easy Neighborhood Market (July 31, 2014), the NLRB evaluated a 20-page “Code of Business Conduct” policy which included the following provision: 

Keep customer and employee information secure.  Information must be used fairly, lawfully and only for the purpose for which it was obtained. 

In evaluating this provision, the NLRB concluded that “employees would reasonably construe the admonition to keep employee information secure to prohibit discussion and disclosure of information about other employees, such as wages and terms and conditions of employment.”  The NLRB has steadfastly held that employees have a right to discuss their wages, benefits, and other terms and conditions of employment with one another.  In essence, the above rule was inartfully drafted in a manner in which it could be interpreted to prohibit employees from sharing information about their wages, etc. 

Obviously, employers have a right to protect against the disclosure of confidential and proprietary information.  Most confidentiality policies were drafted for the express purpose of preventing employees from improperly disclosing confidential or private information to third parties.  As a practical matter, however, employers have to be careful to avoid overreaching and creating the impression that they are trying to stifle employee discussions about their own terms and conditions of employment. 

With the above in mind, this is a good time to review your confidentiality policies, whether contained in an employee handbook, code of conduct, or other document.  By focusing on the protection of confidential and proprietary business information – while avoiding creating the impression that employees are not free to discuss their own wages, benefits, and terms and conditions of employment – employers can avoid potential challenge to their employee rules in the future. 

If you have questions about this Employment Law Alert or wish to discuss the impact of this decision upon your business, please do not hesitate to contact Maury Nicely at Evans Harrison Hackett PLLC, 423/648-7851 or mnicely@ehhlaw.com.