Employers with confidentiality provisions are often caught unawares by the National Labor Relations Board, which governs union- and non-union employers. Be aware of the red flags for employer confidentiality policies.
In 2014, the Board has pushed employers on their policies protecting employer information, calling many standard policies “overbroad.” Specifically, the National Labor Relations Act protects employees’ right to engage in “concerted activity” for “mutual aid or protection.” Employers may not interfere or restrain this right of employees. The Board has taken the view that many employers’ confidentiality policies would “tend to chill employees” in the exercise of their rights under the National Labor Relations Act. For instance, an overbroad policy that prevents employees from discussing wages, employee records, and discipline have been found to be overly broad. Fresh & Easy Neighborhood Market (2014). In Fresh & Easy, the company’s policy that employee information is to be kept secure and used only for its intended purpose was overbroad. The Board determined that an employee would read the policy to mean he or she could not discuss wages or conditions of employment. In another 2014 case, Phillips Electronics North America Corp. the Board found that a firm violated the Act due to its policy prohibiting employees from speaking about discipline, unless the employer has a legitimate and substantive business reason for the policy.
This sea change reflects one more reason why companies should reexamine their employee policies and handbooks periodically. Companies updating their policies should carefully draft policies for conduct which may be implicated under the National Labor Relations Act.