Chances Are, Your Confidentiality Policy is Unlawful

Most employers require that employees keep all company-related information confidential.  The National Labor Relations Board (NLRB) has long frowned on such policies because from its perspective the language can “chill” an employee’s right to discuss confidential information such as wages and other terms and conditions of employment.  And before you stop reading — even if you do not have a Union, the National Labor Relations Act (NLRA) almost certainly applies to you!  Surprisingly, the 5th Circuit recently supported the NLRB’s position on this issue, holding that a policy that prohibits employees from discussing “financial information” was unlawful because it could be read to prohibit an employee from discussing his or her compensation.  Flex Frac Logistics v. NLRB (5th Cir. Mar. 24, 2014).  Employers should review their confidentiality policies and think about whether they are inadvertently asking the NLRB and its union-friends to come knock on their door.

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