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Do your confidentiality agreements pass muster with the NLRB?

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Last week, Jon Hyman at the Ohio Employer Law Blog was on point with this good post discussing a recent National Labor Relations Board Administrative Law Judge decision. The case involved what the NLRB General Counsel believed was an overly-broad social media policy in two regards:

  • It banned employees from using social media to comment on work-related legal matters; and
  • It required company-permission be given before employees post images/video online.

Make sure to read Jon’s post for the full-scoop. I promise not to give away the ending (until later in this post, when I give away the ending). But, after the jump, I’m going to examine another aspect of the case; namely, a confidentiality provision that the ALJ deemed overly broad. I’ll also add a few ideas for you to keep your confidentiality provisions compliant with the National Labor Relations Act.

* * *

There’s broad. And then there’s overly-broad.

The case is G4S Secure Solutions (USA) Inc.The confidentiality provision at issue stated:

The protection of confidential information, trade secrets, and company-specific operating procedures is vital to the interests and success of G4S Secure Solutions USA. Additionally, in the line of duty, you may come into contact with our customers’ confidential information.

Employees who improperly use, reveal, copy, disclose or destroy G4S or client information will be subject to disciplinary action, up to and including termination of employment. They may also be subject to legal action even if they do not actually benefit from the disclosure. Such information includes any information considered proprietary by G4S or the client organization.

So what could possibly be the problem with this provision? I’ll tell you, or better yet, I’ll let the ALJ tell you:

The Handbook does not define “confidential information” or the “activities or policies” it references, nor does it affirmatively state that the rule will not be used to restrict Section 7 activity.

As we’ve discussed several times on the blog, Section 7 of the National Labor Relations Act affords employees the right to discuss with one another the terms and conditions of employment. Consequently, any employer rule that could be reasonably construed as chilling that right is considered overly-broad and unlawful.

So, how can employers avoid the problem of overly-broad agreements?

  1. Don’t rely on a “savings clause” or disclaimer. G4S’s social media policy stated, in bold print, “This policy will not be construed or applied in a way that interferes with employees’ rights under federal law.” Go poll your employees about what they know about their federally-protected rights. Exactly. The ALJ viewed this restriction on using social media to comment on work-related legal matters as being overly broad. (Hopefully, you read Jon’s post before reading this. Otherwise, I just spoiled it for you. WAAAAAAAA!!!!!). The same logic would apply to a broad disclaimer in a confidentiality agreement.
  2. Instead, specify what is and is not confidential and proprietary. This will avoid the vagueness that the NLRB so hates.
  3. And make clear that wages and benefits are not included in the list of confidential items. You may want to explicitly carve them out to avoid suspicion that the confidentiality agreement could reasonably be construed as prohibiting protected activity.