Agencies target employee speech restrictions (Part 2)

Ater Wynne LLP
NW Law frim

The focus of the NLRB and the EEOC has been primarily on invalidating employment policies that might have a tendency to chill employee rights under Section 7 of the NLRA and Title VII, such as broadly-worded confidentiality and social media policies.  Section 7 entitles employees to form and join a union, and to engage in organizing, collective bargaining, and other concerted activities for mutual aid and protection.  Section 8 of the NLRA prohibits employers from interfering with employees’ exercise of their rights under Section 7.

One such ruling by the NLRB was recently upheld by the Fifth Circuit, which invalidated a fairly standard confidentiality policy.  The policy at issue defined “Confidential Information” as including information related to customers, suppliers, distributors; the employer’s management and marketing processes, plans and ideas, processes and plans, financial information, including costs, prices; current and future business plans, computer and software systems and processes; personnel information and documents, and the company’s logos and art work.  The policy prohibited employees from sharing Confidential Information outside the organization, or from removing or making copies of any company records, reports or documents without prior management approval.  The policy also provided that disclosure of Confidential Information could lead to termination and possible legal action.  Although the company’s policy said nothing specific about wages, the Fifth Circuit found that the policy violated Section 8 of the NLRA because employees could interpret the policy as precluding discussions about wages.  Thus, it appears that the NLRB’s expansive reading of Section 7 rights may be gaining traction in the courts, at least with respect to employer confidentiality policies.

Our prior coverage of these issues is available here and here.

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