NLRB Finds Confidentiality and Media Contact Rules Lawful

Kollman & Saucier
Kollman & Saucier

As you may recall, under President Obama’s National Labor Relations Board, seemingly  innocuous work rules set forth in employee handbooks were routinely struck down as violating Section 7 of the National Labor Relations Act.  The pendulum has swung the other  way under President Trump’s NLRB, as is shown by the Board’s recent decision in LA Specialty Produce Company, No. 32-CA-207919 (10/10/19).

The case concerned two rules that appeared in the employer’s employee manual.  The first rule, a Confidentiality and Non-Disclosure rule, stated, “Every employee is responsible for protecting any and all information that is used, acquired or added to regarding matters that are confidential and propriety of [the employer] including but not limited to client/vendor lists[.]”  The Board recognized that employees have a right to appeal to customers for support during labor disputes.  It found this rule lawful, however, because the rule does not appear to prevent employees from communicating with clients or vendors or from giving vendor and client names to a labor organization.  Rather, it simply prohibits employees from sharing “client/vendor lists,” which the Board recognized is within a business’s right to do.  The Board concluded that “rules that prohibit the disclosure of confidential and proprietary customer and vendor lists” are categorically lawful because they target information that businesses have developed over time rather than information that is central to the exercise of Section 7 rights.

The second rule evaluated was a Media Contact rule, which stated, “Employees approached for interview and/or comments by the news media, cannot provide them with any information.  Our President, Michael Glick, is the only person authorized and designated to comment on Company policies or any event that may affect our organization.”  Employees have a right to engage in protected concerted activity by seeking to improve their work conditions through channels other than the employer-employee relationship, including by speaking to the media.  However, the Board found this particular work rule lawful because it is limited to prohibiting employees from speaking on the employer’s behalf and only when approached by the media.  In other words, it did not prohibit employees from ever speaking to the media.  As with the Confidentiality and Non-Disclosure rule, the Board found that the Media Contact rule (i.e., a rule prohibiting employees from speaking to the media on behalf of their employer) was affirmatively lawful, and that employees do not have a right under the NLRA to act as a company spokesperson.

An understanding of what work rules violate and do not violate the NLRA is crucial to maintaining a proper employee handbook.  Employers would be well-served to ensure that their handbooks are reviewed regularly by someone who is familiar with the  ever-changing landscape of the NLRA.

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