Wednesday, February 19, 2014

NLRB Finds Portion of Employer's Confidential Information Policy Unlawful

On February 6, 2014, the National Labor Relations Board (NLRB) affirmed an Administrative Law Judge's ruling that a portion of an employer's confidential information policy violated Section 8(a)(1) of the National Labor Relations Act (Act).  See MCPc, Inc., Case 06-CA-063690, 360 N.L.R.B. No. 39.  

As most employers do, MCPc maintained a confidential information policy in its handbook that prohibited employees from: (1) storing, outside of the company, information pertaining to any matter related to the company's business; (2) providing anyone with information about the company's purchase prices or processes without permission of senior management; and (3) engaging in "idle gossip or dissemination of confidential information within [the company], such as personal or financial information…."  A violation of the policy could lead to disciplinary action, up to and including discharge.

MCPc discharged an employee after he commented, during an internal meeting, on the dollar figure of a new company executive's salary, contending the employee improperly accessed computer files in violation of the confidential information policy to discover the executive's salary.

Finding no issue with the first two subparts of the policy, the Board agreed with the ALJ that the third subpart was overly broad because employees would (allegedly) construe the rule to prohibit the discussion of wages or other terms and conditions of their employment with their co-workers, activity that is protected by Section 7 of the Act. 

This ruling is yet another example of the NLRB's assault on private employers' facially-reasonable employment policies.