March 16, 2018

Do Not Ignore the NLRB: Confidentiality

Like employer restrictions on social media postings, the National Labor Relations Board (“NLRB”) has become more involved with other non-union employer confidentiality policies.

Earlier this year, the National Labor Relations Act (“NLRA”) found that a blanket policy requiring employee confidentiality during an employment investigation violated the NLRA. They said it limited employees’ rights to engage in concerted activity, which means the right to act together to improve their working lives. A case-by-case inquiry to determine the need for confidentiality is required to comply with the NLRA.  See, e.g. EchoStar Technologies, 27-CA-066726 (Jan. 30, 2013). This invalidates the company’s requirement that employees who participate in internal investigation must maintain confidentiality, because the policy did not apply a case by case analysis to balance the employer’s need for confidentiality against employees’ Section 7 rights.

Additionally, the NLRA found several policies that restrict employee contact with the media unlawful as they could prevent employees from communicating with the media about protected activities, such as those regarding a labor dispute. These policies included a rule instructing employees not to contact the media, and policies requiring preapproval from the public relations department in order for employees to comment to the media about the company.