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Overly Broad Confidentiality Provisions
On June 26, 2014, the U.S. Supreme Court issued a decision in the Noel Canning case that may impact the validity of several decisions relating to protected concerted activity in the workplace. In National Labor Relations Board v. Noel Canning, the U.S. Supreme Court held that President Obama’s “recess” appointments to the NLRB were invalid, calling into question any decisions issued by the Board during this time frame.
The NLRB has indicated that it will work to resolve any cases affected by the U.S. Supreme Court’s ruling as expeditiously as possible. In the interim, employers should wait for further information from the NLRB before disregarding any opinions issued while the invalid Board was in place. If you have any questions regarding this decision and how it may impact your workplace, seek advice of counsel.
Employers should be aware that the concept of “concerted activity” under Section 7 is broadly applied to employee actions. The NLRA protects the right of employees to discuss the terms and conditions of employment, which can include topics such as wages, hours, safety, vacation and sick time policies, promotions, hiring and related subjects, regardless of whether the employees are represented by a union.
In this regard, the NLRB determined that an employer, even in a non-union atmosphere, cannot maintain an overly broad confidentiality provision which has the effect of interfering with employee rights under Section 7 of the NLRA.
In the case of Northeastern Land Services, Limited dba The NLS Group v. NLRB, the employer maintained, as part of its employee contract, a provision that provided that the “employee understands that the terms of this employment, including compensation, are confidential to employee and the NLS Group. Disclosure of the terms to other parties may constitute grounds for dismissal.”
The employer alleged that an employee violated the terms of this confidentiality agreement and discharged the employee. In turn, the employee filed charges with the NLRB claiming that the employer violated the NLRA. The court ruled that it was a violation of Section 8(a)(1) of the Act to maintain or enforce such a prohibition, noting that even the mere maintenance of such a provision would reasonably tend to chill employees in the exercise of their Section 7 rights to discuss conditions of employment. The employee was reinstated and awarded back pay for wages lost resulting from the discharge.
In a more recent decision, the NLRB determined that rules prohibiting employees from sharing private information about sick calls, leaves of absences, workers’ compensation injuries, personal health information, payroll, credit card and social security numbers as well as employee’s names, addresses and telephone numbers and email addresses violated the Act.
It can be expected that employers will challenge the NLRB’s position with respect to confidentiality in the federal courts.
The NLRB has indicated that it will work to resolve any cases affected by the U.S. Supreme Court’s ruling as expeditiously as possible. In the interim, employers should wait for further information from the NLRB before disregarding any opinions issued while the invalid Board was in place. If you have any questions regarding this decision and how it may impact your workplace, seek advice of counsel.
Employers should be aware that the concept of “concerted activity” under Section 7 is broadly applied to employee actions. The NLRA protects the right of employees to discuss the terms and conditions of employment, which can include topics such as wages, hours, safety, vacation and sick time policies, promotions, hiring and related subjects, regardless of whether the employees are represented by a union.
In this regard, the NLRB determined that an employer, even in a non-union atmosphere, cannot maintain an overly broad confidentiality provision which has the effect of interfering with employee rights under Section 7 of the NLRA.
In the case of Northeastern Land Services, Limited dba The NLS Group v. NLRB, the employer maintained, as part of its employee contract, a provision that provided that the “employee understands that the terms of this employment, including compensation, are confidential to employee and the NLS Group. Disclosure of the terms to other parties may constitute grounds for dismissal.”
The employer alleged that an employee violated the terms of this confidentiality agreement and discharged the employee. In turn, the employee filed charges with the NLRB claiming that the employer violated the NLRA. The court ruled that it was a violation of Section 8(a)(1) of the Act to maintain or enforce such a prohibition, noting that even the mere maintenance of such a provision would reasonably tend to chill employees in the exercise of their Section 7 rights to discuss conditions of employment. The employee was reinstated and awarded back pay for wages lost resulting from the discharge.
In a more recent decision, the NLRB determined that rules prohibiting employees from sharing private information about sick calls, leaves of absences, workers’ compensation injuries, personal health information, payroll, credit card and social security numbers as well as employee’s names, addresses and telephone numbers and email addresses violated the Act.
It can be expected that employers will challenge the NLRB’s position with respect to confidentiality in the federal courts.