Most employers are very conscious that the National Labor Relations Board (NLRB) will take an interest in them, if and when their employees try to organize or join a union. However, many employers are not as focused on what the National Labor Relations Act (NLRA) has to say about non-unionized employers. One such area receiving increasing attention, in some recent NLRB cases, is in relation to the issue of confidentiality in the workplace.
The National Labor Relations Act, puts particular emphasis on protecting certain “concerted activities” among employees, regardless of whether the employer is unionized on not. Under the concept of “Section 7” concerted activity rights, the NLRA protects non-supervisory employees acting with or on behalf of other employees for their “mutual aid and protection,” particularly when employees are discussing the terms and conditions of their employment. Any employer, even a non-unionized employer, who interferes with a non-supervisory employee’s right to engage in such protected activities may face an NLRB charge and investigation. Thus, any employer, even a non-unionized employer, may run afoul of the NLRA when its agreements, policies or practices seek to impose an obligation of confidentiality over topics relating to the terms and conditions of employment. And, the board’s attention and recent case law is concerned not so much with employers who have actually infringed upon an individual employee’s rights in a particular case, as with the fact that the employer has a policy or practice that, in the board’s view, is likely to “chill” employees as they consider exercising their rights. It is the employer’s policy or practice that the NLRB may find is the operative violation of the NLRA.
Confidentiality on general information about personnel
A second problematic area is broad confidentiality or non-disclosure policies or agreements that restrict the sharing of basic identification and contact information about other employees. In a recent opinion from the NLRB, Quicken loans, Inc. and Lydia E Garza, the NLRB found that the employer violated the NLRA by using an employment agreement that defined proprietary confidential information as including “nonpublic information relating to or regarding… personnel,” “personnel information including, but not limited to, all personnel lists, rosters, personal information of coworkers” and “handbooks, personnel files, personnel information such as home phone numbers, sell phone numbers, addresses, and email addresses[.]” The NLRB reasoned that such restrictions would prohibit employees from discussing with each other the names, wages, benefits, addresses or telephone numbers of other employees, and that this would substantially hinder employees in the exercise of their Section 7 rights. Here the takeaway for employers is that confidentiality agreements used with non-supervisory employees need to be targeted on sensitive business information, but beware of casting too wide a net on prohibiting disclosure and discussion of other coworker information.