In June of this year, the National Labor Relations Board (NLRB) issued several “advice memoranda” on issues. Advice memoranda provide indications of how the NLRB’s legal team views certain workplace issues in enforcing the National Labor Relations Act (NLRA) and what the NLRB may find unlawful.
Why should you care?
Many employers mistakenly believe that the NLRB’s decisions, opinions, or advice memoranda only apply to unionized workplaces; however, the NLRB’s reach includes non-unionized businesses – even those here in NC.
The NLRA often governs and impacts company internal policies and procedures.
- Under Section 7 of the NLRA, employees have a right to engage in “concerted activity” in the workplace, regardless of whether the workplace is unionized or not. This means that employees have a right to participate in “concerted activities for the purpose of . . . mutual aid or protection,” including statements or actions made in and outside of the workplace. As part of its enforcement authority under Section 7, the NLRB will examine whether employer rules or policies have a “chilling” effect on employees’ rights to engage in workplace concerted activity. Consequently, employer handbooks and the policies contained in the handbooks are often the subject of NLRB attention.
- In the advice memorandum in question, the NLRB looked at several handbook policies of a shower door manufacturer and found certain policies to be unlawful under Section 7. One such policy included the following restriction: “. . . all information gathered by, retained or generated by the Company is confidential. There shall be no disclosure of any confidential information to anyone outside the Company without the appropriate authorization . . . .”
Sound familiar?
The NLRB determined that the definition of “confidential information” in the rule, although it did not “explicitly target wages and working conditions,” was “so broad as to include such information.” Specifically, the NLRB stated that:
“Employee wage rates, employment policies, handbook rules, and virtually all other terms and conditions of employment are information that is ‘generated’ and ‘retained’ by the Employer . . . . [A] confidentiality rule encompassing such information strikes at core Section 7 rights. Discussions and coordination among employees, or between employees and unions, regarding terms and conditions of employment and employment-related disputes is a central aspect of protected concerted activity under the NLRA.”
What should you do?
To avoid a finding that a confidentiality policy is overbroad, employers should review their rules and policies to ensure that what information is defined as “confidential” is limited to information related to the employer’s business and services, and excludes personnel information (e.g., wages, salaries, employee names and contact information, or working conditions) that employees lawfully could reveal or discuss under Section 7 of the NLRA.
If you have questions or concerns about your confidentiality policy or other handbook policies, please feel free to contact us.