United States: And The Beat Goes On… The NLRB's Attack On Confidentiality Continues

Last Updated: October 8 2015
Article by D. Albert Brannen

Many employers believe they have the absolute right to prohibit their workers from disclosing "confidential" information to coworkers and third parties. They are dead wrong. The National Labor Relations Board (NLRB) has consistently restricted employer rights in this area, and some recent decisions and guidelines from the current Board have accelerated the erosion of these employer rights.

This article outlines eight things that, unbeknownst to many employers, must be permitted under the National Labor Relations Act (NLRA).

1. Discussing Pay And Benefits

For about 50 years, employees have enjoyed a clear-cut right to discuss wages, hours, and other terms and conditions of employment with fellow employees, as well as with nonemployees (such as union representatives). Nonetheless, many employers continue to have confidentiality policies which specifically prohibit employee discussions of terms and conditions of employment, such as pay or benefits. Such policies are unlawful and you should immediately excise them from company handbooks.

2. Disclosing Employee, Personnel Or Confidential Information

Ten years ago, the Board ruled that a broad policy prohibiting release of "any confidential information" is unlawful. About the same time, the Board held that an employer policy prohibiting the release of any and all information regarding business conducted in the office is also unlawful. Both of those cases were subsequently enforced by federal circuit courts of appeal. These rulings form the basis for some of the expansive guidelines issued by the Board's current General Counsel (GC) in March 2015.

According to the GC, a confidentiality rule that broadly prohibits disclosure of "employee" or "personnel" information, without further clarification, will be viewed by the Board to be unlawful. Thus, the following policies would be unlawful:

  • "Do not discuss customer or employee information outside of work, including phone numbers and addresses."
  • "Never publish or disclose the Company's or another employee's confidential or other proprietary information. Never publish or report on conversations that are meant to be private or internal to the Company."
  • "You cannot disclose details about the Company."
  • "Sharing of overheard conversations at the work site with your co¬workers, the public, or anyone outside of your immediate work group is strictly prohibited."
  • "Discuss work matters only with other Company employees who have a specific business reason to know or have access to such information. Do not discuss work matters in public places."
  • "If something is not public information, you must not share it."

3. Discussing A Company Investigation

In the course of an employer's investigation into allegations of employee misconduct, such as theft, drug/alcohol use, workplace bullying or violence, or racial or sexual harassment, employers typically instruct those employees who are interviewed as witnesses not to discuss the investigation with anyone. Some employers even threaten interviewees with termination if they breach this confidentiality admonition. Employers generally believe that such admonitions help to maintain the integrity of the investigation process so that the employer can ferret out the truth without the interference of other employees.

In 2012, the Board ruled that such admonitions are unlawful—unless you can justify the prohibition by showing that your interests outweigh employee rights. In this regard, a general concern that the investigation will be compromised by employee discussion is not sufficient to outweigh employee rights and interests.

4. Witness Statements

Another common practice by employers in investigating employee misconduct is to ask employees to provide signed written statements. However, a 2015 Board ruling held that an employer cannot keep those statements confidential and that it must provide them to the union representative upon request. That ruling overturned precedent that had been in effect since 1978 and will make it more difficult for you to convince employees to serve as witnesses to coworker misconduct.

5. Disclosures To The Media, Government Agencies Or Other Third Parties

Employees have well-established rights under the Act to communicate with the news media, government agencies, and other third parties about their complaints, wages, benefits, and other terms and conditions of employment. Thus, policies that restrict employee communications with government agencies or the media under the guise of "confidentiality" can be unlawful. Specifically, in his April 2015 guidelines, the Board's GC found the following rules to be unlawful:

  • "Employees are not authorized to speak to any representatives of the print and/or electronic media about company matters unless designated to do so by HR, and must refer all media inquiries to the company media hotline."
  • "Employees are not authorized to answer questions from the news media. When approached for information, you should refer the person to the Company's Media Relations Department."
  • "If you are contacted by any government agency, you should contact the Law Department immediately for assistance."

Despite these rules, you may still lawfully adopt policies that control who is authorized to make "official" statements on your behalf.

6. Using Company Logos, Copyrights Or Trademarks

Employers do not have unfettered rights to prohibit use or disclosure of their logos, trademarks, or copyrights. For years, Board cases have consistently held that employees have a right to use their employer's name and logo on picket signs, leaflets, and other protest material, and that company proprietary interests are not implicated by these noncommercial uses. Thus, a broad ban on such use without any clarification will generally be found unlawful. This continues to be the case as the battle lines are being drawn in the social media arena.

The GC found the following rules to be unlawful:

  • "Company logos and trademarks may not be used without the Company's written consent."
  • "Do not use any Company logos, trademarks, graphics, or advertising materials on social media."
  • "Use of the Company name, address or other information in your personal social media profile is banned."

7. Taking Photographs Or Making Recordings

According to Board decisions, employees also have the right to photograph and make recordings in furtherance of their protected concerted activity, including the right to use personal devices to take such pictures and recordings. Thus, rules placing a total ban on such photography or recordings, or banning the use or possession of personal cameras or recording devices, are unlawfully overbroad. In this regard, the GC found the following rules to be unlawful:

  • "Taking unauthorized pictures or video on company property is prohibited."
  • "No employee shall use any recording device including but not limited to, audio, video, or digital for the purpose of recording any employee or Company operation."
  • "Use or possession of personal electronic equipment on Company property is absolutely prohibited."

8. Being Seen In Company Uniforms

In addition to prohibiting employees from using their logos or trademarks, some employer policies also prohibit employees from being seen in their uniforms, either in person or in photographs and other recorded images. For the same reasons that employees have a protected right to use and disclose their employers' logos in photographs or social media, they also have the right to be seen in their uniforms. As such, rules restricting those employee rights will also be held to be unlawful.


Employees have significant rights to engage in concerted action for their mutual aid and protection under the Act. Among other things, these rights include the right to use or disclose information or images that many employers would consider "confidential." We hope that this article has alerted you to the problems with overbroad prohibitions on use or disclosure of such information or images so that you can revise your policies and comply with existing law and legal guidance.

A version of this article originally appeared in MultiBriefs.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

D. Albert Brannen
Similar Articles
Relevancy Powered by MondaqAI
McLane Middleton, Professional Association
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
McLane Middleton, Professional Association
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions