United States: Is An Employee Handbook Confidential? NLRB Says No

Many employers have rules stating that their employee handbooks and the policies contained within them are confidential. A recent National Labor Relations Board ("NLRB") advisory guidance memo says that such a rule runs afoul of the National Labor Relations Act ("NLRA"). Why?

The NLRB says that a policy that treats an employee handbook as confidential effectively precludes employees from discussing handbook policies regarding employee pay, benefits, and working conditions with unions and other third parties. Such a rule is problematic, because employees, even in non-union workforces, have rights under Section 7 of the NLRA to discuss their terms and conditions of employment with other employees.

Employee Handbooks: What is the NLRB's Standard?

In its decision in The Boeing Company, 365 NLRB No. 154 (Dec. 14, 2017), the NLRB established a new standard that focuses on the balance between the rule's negative impact on employees' ability to exercise their Section 7 rights and the rule's connection to employers' right to maintain discipline and productivity in their workplace.

The Foreword to the handbook the NLRB analyzed in the guidance states in part, that "[t]his handbook and the information in it should be treated as confidential. No portion of this handbook should be disclosed to others, except [the Employer's] employees and others affiliated with [the Employer] whose knowledge of the information is required in the normal course of business."

The NLRB concluded that the rule's adverse impact on Section 7 rights outweighs the Employer's business justification of protecting confidentiality of its policies. The NLRB opined that an employer could lawfully prohibit the disclosure of certain confidential information (if it is actually confidential) without having a blanket policy prohibiting the disclosure of all of its policies.

Time to Review Policies in Employee Handbooks

The NLRB's guidance opinion is a reminder that employees – even those who are not represented by a union — have rights under the NLRA. Employers, therefore, must be aware of the NLRA's provisions including those that apply to employer policies. The guidance memo is clear that employers should remove any policy statements that their entire handbook is confidential. In addition, other policies should be reviewed and revised, if necessary, to ensure that they do not prohibit employees from discussing the terms and conditions of their employment with other employees.

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