On September 8, 2014, a National Labor Relations Board (“NLRB”) administrative judge struck down a confidentiality policy of a California elementary school for being overly broad and in violation of the National Labor Relations Act as tending to chill protected activity under the Act.
After resigning, Trudy Perry, a teacher at the Muse School CA of Calabasas, funded by Hollywood director James Cameron and his wife, received a letter from the school’s counsel threatening legal action for her supposed violation of the policy by making negative and allegedly slanderous statements about the school to current students’ parents.
Back in July of 2013, Perry filed a charge with the NLRB accusing the school of unfair labor practices for threatening to enforce its written confidentiality policy prohibiting employees from disclosing confidential information about Muse, its owners, students, and employees. Among other things included under the policy was confidential information about employee compensation and budgets. The policy went further, prohibiting employees from making disparaging remarks about anyone associated with the school in a way that would harm the school’s reputation.
After Perry’s charge, the school revised the policy to include additional categories of confidential information. The revised policy also purported to prevent employees from sharing confidential information with anyone, including their own spouses and families. Administrative Law Judge Lisa D. Thompson, however, found both the original and revised policies in violation of the NLRA. She found that “both agreements explicitly prohibit and could reasonably be interpreted as prohibiting employees” from discussing issues related to working conditions, as is their right under Section 7 of the NLRA.
While the school argued that the policy was necessary to protect the confidentiality of the celebrity founding couple, along with other “notable celebrity individuals and families” with “high profile status,” Judge Thompson disagreed, finding that the policies broad prohibitions could reasonable be construed as prohibiting employee’s protected discussion of wages. The Judge focused on the policy’s failure to clearly define the particularly prohibited conduct it sought to restrict, its failure to clarify what communication would be permissible, and the school’s failure to cite to any authority suggesting the confidentiality of the “high profile” individuals affiliated with the school superseded the rights of its employees under the NLRA. Notably, the Judge also dismissed the school’s argument that its inclusion of a clause stating the policy was not to be construed as prohibiting protected activity, finding it irrelevant that the revised policy had never been adopted since the mere maintenance of the policy was sufficient to violate the NLRA.
Employers would be well-advised to review the language of all confidentiality policies on file, regardless of whether the file has been expressly adopted or enforced. Any policies that can be reasonably construed as prohibiting protected activity should be revised to clearly provide for the specific conduct it seeks to restrict and eliminate any language that could be read by employees to mean that they are prohibited from discussing employment-related issues.