A provision of an employee handbook that prohibits employees from disclosing all confidential information – including employee wage and discipline information – violates Section 7 of the National Labor Relations Act, according to Cintas Corp. v. NLRB (D.C. Cir., Mar. 16, 2007). The Cintas handbook contained language indicating that the company protects the confidentiality of any information about it, its employees, and accounting and financial matters. Elsewhere in the handbook, employees are warned that they could be disciplined for violating company confidences.
The problem with the handbook language, according to the NLRB, was that it conflicted with employees’ rights under federal labor law to discuss the terms and conditions of their employment with others. The Court was persuaded that a labor law violation had occurred, because the mere existence of the prohibition could easily serve to chill employee’s rights to share information about pay and discipline.
The case demonstrates three points of practical significance to employers: an employee handbook need not expressly interfere with employees’ rights under the NLRA to be illegal; the fact that employees did not interpret the handbook as hampering their rights did not matter; and an employer cannot save an illegal provision by simply failing to enforce it. Avoid similar problems by considering these points:
1. Review your confidentiality policies and actual practices. If discipline can be imposed for violations of company confidentiality provisions, be sure the confidentiality sections don’t sweep too broadly and infringe on employees’ rights under Section 7 of the NLRA to engage in concerted activities.
2. To do this, make sure you define “confidential information” narrowly enough to avoid the problem.
3. Also remember that the limitations on the scope of confidentiality provisions will not apply to employees like supervisors and managers who are not covered by the NLRA in the first place.
4. Another possible approach to consider is to say in the policy itself that it is not intended to prevent employees from discussing wages and terms and conditions of employment with each other.
The case makes clear that blanket confidentiality claims can, in some cases, create more problems than they solve and should be carefully reviewed with counsel.