CLIENT UPDATE

Putney, Twombly, Hall & Hirson LLP
521 Fifth Avenue
New York, NY 10175
Tel: (212) 682-0020

 

Month 00, 2009

NLRB Continues Assault on Employer Confidentiality Policies

As we have previously advised, the National Labor Relations Board (“NLRB” or the “Board”) has taken issue with employers’ confidentiality and non-disclosure policies, even in non-union workplaces. See our Client Alert available at here.  The NLRB recently released a previously-confidential Advice Memo analyzing an employer’s social media policy.  The Advice Memo is available at http://www.nlrb.gov/case/05-CA-064793.

In the Advice Memo, the Board’s Associate General Counsel’s Office found that significant portions of a company’s social media policy violated Section 7 of the National Labor Relations Act (“NLRA”).  Section 7 protects employees’ rights to “self-organization, to form join or assist labor organizations . . . and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection . . . .”

The Advice Memo

A. Company’s Policy

The relevant portions of the company’s social media policy stated:

  • You have an obligation to protect confidential, nonpublic information to which you have access in the course of your work.  Do not disclose, either externally or to any unauthorized Associate, any confidential information about the Company or any related companies . . . or about other Associates, customers, suppliers or business partners.  If you have questions about what is confidential, ask your manager.
  • Do not use any Company logo, trademark or graphics, which are proprietary to the Company, or photographs or video of the Company’s premises, processes, operations or products, which includes confidential information owned by the Company, unless you have received the Company’s prior written approval.
  • Do not defame or otherwise discredit the Company’s products or services . . . .

The policy also included a “disclaimer” that the company would not “construe or apply its confidentiality guidelines in a manner that improperly interferes with or limits employees’ rights under . . . the NLRA.” 

B. The Board’s Determination

The Board advised that the prohibitions regarding confidential, nonpublic information were unlawful because they could reasonably be construed to restrict employees’ Section 7 rights.  The Board stated that, despite the inclusion of the disclaimer, the policy was too vague and, without limiting language, it may be unclear to employees what conduct is lawfully prohibited and what conduct may be protected – i.e., that employees are permitted to disclose or use information regarding their terms and conditions of employment for protected, concerted purposes. 

Regarding the prohibition on photographing and video recording, the Board advised that employees should be free to use social media to communicate and share information about their Section 7 activities through pictures or videos, such as of employees engaged in picketing or other concerted activities, and that such permissible use was not clear from the company’s policy.  Similarly, the General Counsel concluded that employees would reasonably understand the rule prohibiting the use of company logos, trademarks or graphics to prohibit such use on leaflets, cartoons, picket signs, and other material used to engage in protected activity. 

The Board upheld the company’s prohibition on defaming or otherwise discrediting the company’s products or services, stating that it was not unlawful because it could not be reasonably interpreted to prohibit criticism of the company’s labor practices or treatment of employees.

The Board explained that the company’s disclaimer was insufficient to overcome a determination that the policy could be interpreted to interfere with employees’ Section 7 rights.  According to the Board, employees would not understand from the language of the disclaimer that certain activities, such as disclosing information concerning terms and conditions of employment, seemingly prohibited by the policy are considered “protected activity” and are, in fact, permitted. 

Takeaway for Employers

The Advice Memo reminds employers once again that social media and confidentiality policies must be narrowly tailored to protect legitimate business interests, and that a general disclaimer will not suffice where it may be unclear to employees what conduct is prohibited and what conduct is permitted. 

With respect to confidentiality of information, employers should carefully define what information is considered “confidential.” Typically, general working conditions or terms of employment are not considered “confidential.”  Employers seeking to prohibit photographing and/or videotaping either inside or outside their facilities should be specific as to the interests the employer seeks to protect, for example, patient privacy or proprietary work processes.  Finally, employers seeking to protect intellectual property, such as logos or trademarks, should consider limiting prohibitions solely on the commercial use of such intellectual property.

We are available to discuss any questions or concerns you may have with respect to the Advice Memo and/or your confidentiality, social media and related policies.