Earlier this month, the National Labor Relations Board determined that an employer’s confidential information policy contained in the employee handbook violated federal labor law because it applies to employees’ discussion of financial matters, including their pay. MCPc, Inc. involved claims by an employee relating to his termination from employment. In addition to the facts surrounding the termination, the employee complained that the company’s confidentiality policy violated the NLRA because it could be interpreted to prohibit employees’ discussion of salary and other workplace issues.

The policy in question contained the usual language restricting disclosure of proprietary business information, such as customer pricing. However, the policy also defined confidential information as including “personal or financial information.” In a 3-2 decision, the NLRB affirmed the administrative law judge’s determination that this language violated Section 8(a)(1) of the NLRA, because it could have the effect of deterring employees from discussing terms and conditions of employment due to concerns over disciplinary action.

The NLRB reached this conclusion despite no evidence that the employer ever intended the policy to apply to protected concerted activity, or attempted to enforce the policy in this manner. The very existence of this language in the policy had a potential chilling effect on protected conduct, and therefore violated the NLRA.

Interestingly, one of the three Board members in the majority included a footnote questioning the validity of this presumption of deterrent effect, and suggested that the NLRB reexamine this position in a future case. Absent such reconsideration, however, the language of the policy itself can be enough to support an unfair labor practice violation absent any actual attempt by the employer to apply the policy to employee conduct.