May 31, 2017
Knowledge is power, especially for businesses. Protecting that knowledge is often key to remaining competitive. Similarly, knowing or sharing information about wages, hours and working conditions is often important to employees. Sometimes these interests collide requiring the National Labor Relations Board (NLRB) or a court to decide whether an employer’s policies, specifically confidentiality policies, go too far.
Employers have the broad right to manage their businesses, as long as they do not interfere with employees’ Section 7 rights. The National Labor Relations Act, Section 7, grants most non-governmental employees the right to discuss wages, hours, and other terms and conditions of employment with fellow employees as well as with non-employees.
For several years, the NLRB has scrutinized employer confidentiality policies using criteria, including a subjective test of whether “employees would reasonably construe” those policies as prohibiting Section 7 activity. As a result, the NLRB has found a variety of confidentiality provisions to be unlawful. (Refer to the list below.)
The new NLRB Chairperson has begun questioning whether the NLRB’s current analysis is too subjective, but in the meantime unfair labor practice charges continue to be filed against employers because of their confidentiality policies. One recent example is a NLRB Complaint against Google challenging several of its policies including confidentiality.
The NLRB is not the only forum where confidentiality policies can be questioned. For example, Google faces a lawsuit filed in California State Court alleging that its confidentiality policy was so broad that it unlawfully prohibits contacting governmental agencies. Google is defending against the lawsuit, but the case illustrates that confidentiality policies can trigger legal challenge.
In light of the ongoing legal scrutiny, employers should review their confidentiality policies and consider revising those provisions that are “too confidential.”
“Unlawful” Confidentiality Provisions
- 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).
- “Never publish or disclose [the Employer’s] or another’s confidential or other proprietary information. Never publish or report on conversations that are meant to be private or internal to [the Employer].”
- Prohibiting employees from “[d]isclosing . . . details about the [Employer].”
- “Sharing of [overheard conversations at the work site] with your co-workers, the public, or anyone outside of your immediate work group is strictly prohibited.”
- “Discuss work matters only with other [Employer] employees who have a specific business reason to know or have access to such information. . . . Do not discuss work matters in public places.”
- “[I]f something is not public information, you must not share it.”
NLRB General Counsel, Memorandum GC 15-04 (March 18, 2015)
Our Insights are published as a service to clients and friends. They are intended to be informational and do not constitute legal advice regarding any specific situation.