Employees have a broad legal right to communicate with one another about wages, benefits, and other employment terms. To effectuate this broad right, the National Labor Relations Board has required employers to exclude such information from their confidentiality policies. In The Boeing Co. the Board cited as a prototypical example of an unlawful rule one that prevents employees from discussing wages or benefits with one another. A policy treating an employee handbook as confidential recently was found unlawful for this very reason. Rules prohibiting employees from sharing information about their pay and benefits, or circulating coworkers' contact information, likewise have been ruled unlawful.
Employers retain substantial information in their records, and much of it concerns employees. Often this information is highly sensitive in nature. Employee social security numbers, identification or account numbers, and protected medical information that may be housed in the employer's files typically would not be needed for employees to engage in concerted activities. However, protecting such information from disclosure is critically important to prevent identity theft and privacy intrusions, and to avoid liability.
Employers also have an interest in protecting valuable internal information. The Board's traditional rule has been that "employees may use for self-organizational purposes information and knowledge which comes to their attention in the normal course of work activity and association but are not entitled to their Employer's private or confidential records." For instance, in one case an employee was not entitled to demand from the employer a list of his coworkers, but was engaged in protected activity when he memorized the names of fellow employees from timecards for the purpose of contacting them about union organizing. Thus, employees may use information that is openly available to them, but may not disclose the employer's internal confidential information without authorization.
Recently, the Board has employed this same reasoning in finding lawful the maintenance of confidentiality policies that protect the employer's internal employee information. In Argos USA LLC, 369 NLRB No. 26 (2020), the Board found a rule restricting disclosure of the company's employee information categorically lawful because read as a whole, the restriction applied only to the employer's proprietary business information. The Board observed that "the Confidentiality Agreement explicitly states that employees may not disclose 'confidential Company information.' Confidential information was defined in the policy as 'information regarding Argos'... earnings' and 'Argos'... employee information.'" The rule did not reference employees' wages, contact information, or other terms and conditions of employment that would be generally known or accessible from sources other than the employer's confidential files.
Even more recently in Interstate Management Co. LLC, 369 NLRB No. 84 (2020), the Board extended this reasoning to a confidentiality policy that protected the company's non-public information, including "personal information" of employees and former employees defined as "any information that can be associated with or traced to any individual, such as his or her name, address, telephone number, email, bank and credit card information, [and] social security number." The Board observed that while employees have a Section 7 right to use generally known information about coworkers that they learn in the course of their work for organizing, the policy was understood as limited to the disclosure by representatives with access to the employer's records from sharing sensitive employee information stored there. The Board further found, applying The Boeing Co., that any potential interference with the exercise of employees' rights was outweighed by the employer's substantial interest in protecting the personal information that it maintains about employees.
In an advice memorandum released on July 15, 2020 involving DeNovo Legal LLC, 02-CA-182019, the Board's General Counsel relied on these authorities in finding lawful a confidentiality rule protecting "confidential employer information" concerning its personnel. The rule was construed as limited to the employer's proprietary business information and not as a restriction on communicating about employee wages and contact information generally. Thus, references to restrictions on financial information as well as staffing plans and practices, rates and pricing structures was not interpreted as covering wage rates or coworker contacts. The General Counsel further reasoned that even if employees might misconstrue the rule as prohibiting discussions about protected subjects, that risk was outweighed by the employer's "patently obvious" need to maintain confidentiality "as to items such as staffing plans and truly private employee information."
Maintaining confidentiality rules that restrict employees' right to communicate about workplace concerns will continue to face serious scrutiny by the Board. Recent decisions finding lawful rules that are limited to protecting the employer's internal records and information is a step in the right direction for employers. As in the case of other Board decisions involving the maintenance of workplace rules, employers will have to be careful when administering rules to avoid actual interference with employee rights.
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