The NLRB Hinders Confidentiality in Nonunion Companies

by Michael Haberman on January 22, 2013 · 2 comments


 

A decision by an administrative law judge rules you cannot require employees to keep information confidential.

A decision by an administrative law judge says you cannot require employees to keep information confidential.

As I have mentioned in the past the National Labor Relations Board has been moving into the arena of controlling the activities of nonunion companies. In their last ruling they hinder confidentiality in nonunion companies.

The ruling

The ruling was actually rendered in the NLRB’s case against Quicken Loans. The case involved a confidentiality statement that also contained non-disparagement clauses the company was having employees sign. I wrote in Requiring Employees to be Courteous Is Ruled Unlawful that the NLRB says a company cannot require employees to be courteous and respectful. As they stated:

We find the “Courtesy” rule unlawful because employees would reasonably construe its broad prohibition against “disrespectful” conduct and “language which injures the image or reputation of the Dealership” as encompassing Section 7 activity, such as employees’ protected statements—whether to coworkers, supervisors, managers, or third parties who deal with the Respondent— that object to their working conditions and seek the support of others in improving them.

In the Quicken Loans case an Administrative Law Judge (ALJ) ruled that the company confidentiality policy was overly broad. The ALJ said in complying with the proprietary/confidential information provision of the agreement, employees would be unable to “discuss with others, including their fellow employees or union representatives, the wages and other benefits that they receive, the names, wages, benefits addresses or telephone numbers of other employees.”  Thus this section would hinder employees exercising their Section 7 rights under the NLRA because the language would have a “chilling” effect and would lead employees to believe they could not exercise their legal rights.

Application of the ruling

There are two areas that companies need to consider when applying this ruling. First, if you have a policy that could be interpreted to potentially infringe upon Section 7 rights all the attorneys I have heard, read and talked to, recommend that you specifically state in the policy that nothing in the policy is meant to prohibit an employee exercising their rights under Section 7 of the National Labor Relations Act. Additionally, they recommend that some distinction is made in the policy to prohibit any distribution of information obtained through illegal or improper methods. Thus is someone does not normally have access to employee records that reveal emails, telephone numbers, etc. they may not publish that information if they improperly obtain them. This is why you want to have security on your personnel files.

Who is covered

One thing I wanted to point out is that this law, the National Labor Relations Act, does not apply to everyone. Supervisors, managers, human resources, independent contractors, and agricultural workers are not covered by the law. Thus you can require you managers and supervisors to sign confidentiality and non-disparagement statements. With everyone else you may want to review your agreements carefully.

Hat Tip to the firm Ford & Harrison, LLP

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