For several years, Cintas Corporation has been the target of a national organizing campaign by the union, UNITE HERE. To organize the workers, UNITE HERE has engaged in an increasingly common tactic among unions, a so-called “corporate campaign.” This means that the union attempted to organize employees not directly, by explaining to them the alleged benefits of being in a union, but indirectly by attacking the company through stockholder initiatives, negative public relations campaigns, and unrelated lawsuits, so as to wear down the parties and force concessions.
UNITE HERE recently won one of these battles. After scouring Cintas’ employee handbook, it filed an unfair labor practice charge with the National Labor Relations Board, claiming that two seemingly innocuous provisions of the handbook were illegal. These policies stated as follows:
“We honor confidentiality. We recognize and protect the confidentiality of any information concerning the company, its business plans, its [employees], new business efforts, customers, accounting and financial matters.”
and warning employees that they could be disciplined for:
“violating a confidence or [for the] unauthorized release of confidential information.”
Cintas responded, as an initial matter, by acknowledging that the National Labor Relations Act protects an employee’s right to discuss wages and other terms and conditions of employment with other employees or with a union. But, the company argued, neither of these provisions explicitly or implicitly prohibited employees from discussing such matters, and noted that there was no evidence that any employee had ever interpreted the language in such a manner. Plus, there was no evidence that Cintas itself had ever enforced either policy in any way that would have inhibited employees’ rights.
Not relevant, and still a violation of the law—according to the U.S. Court of Appeals for the District of Columbia Circuit, affirming prior rulings of both a unanimous panel of the NLRB and a federal administrative law judge. Cintas Corporation v. NLRB, Nos. 05-1305, 05-1340 (D.C. Cir. March 16, 2007). The court held that regardless of intent or actual enforcement, the question was simply whether “employees would reasonably construe the disputed language to prohibit [protected] activity.” According to the court, a reasonable employee could have interpreted the language in these policies to prevent him or her from engaging in concerted activities. Moreover, the “mere maintenance” of the rules in the handbook was illegal regardless of whether any employee had ever actually been inhibited in discussing terms and conditions of employment or whether Cintas had ever actually taken any action against employees based on the rules.
This case should be a stark reminder to employers—unionized or union-free—to keep laws such as the NLRA in mind when preparing or reviewing employee handbooks, confidentiality provisions, or other company policies. In addition, employers should determine whether state or local laws impose similar constraints on the type of information that employees can be prohibited from discussing. The Illinois Equal Pay Act of 2003, for example, provides that “[i]t is unlawful for any employer to discharge or in any other manner discriminate against any individual for inquiring about, disclosing, comparing, or otherwise discussing the employee’s wages or the wages of any other employee...” 820 ILCS 112/10(b).
It is simply illegal for employers in word or deed to suggest that employees cannot or should not share wage or other work-related information with each other or with a union. Careful drafting can help your company formulate its personnel policies so as to avoid issuing confidentiality rules that could inadvertently expose your business to liabilities such as those imposed on Cintas.