As most union and non-union employers know, the National Labor Relations Board has updated its standards in several respects over the past year. For some of these updates, the Board has not comprehensively clarified how far they extend or when they apply. In an effort to help clarify employers’ obligations, the Board’s top prosecutor, General Counsel Peter Robb, recently issued several “advice memoranda” explaining how his office views certain developing issues. Although these memos are not binding law, they show how Board attorneys and regional officials will interpret several important issues.
Traditional confidentiality policies, and intellectual property policies, are generally lawful under the new Boeing standard
Late last year, the Board revised its standard for determining whether employment policies and handbook provisions unlawfully restrict employees from attempting to improve working conditions. Under this new Boeing Company test, when the Board is reviewing a “facially neutral” policy (i.e., one that does not expressly restrict protected activity), the Board will consider it lawful to maintain such a policy if either: (a) an employee could not reasonably construe that policy to prohibit protected activities; or (b) the employer has legitimate justifications for the policy, which outweigh its effect on employees’ protected rights.
In one of these recent advice memos, the General Counsel clarified that traditional confidentiality policies and intellectual property policies will survive this new test. Specifically, the General Counsel considers it lawful for policies to protect “proprietary information,” customer information, and to prohibit the use of an employer’s logo without written permission. Although different rules will apply if an employer is enforcing such a policy to restrict protected activity, this advice memo clarifies that employers may maintain these types of facially neutral policies.
Employers may prohibit employees from disclosing improperly obtained information in most cases
In another advice memo, the General Counsel clarified a similar topic. He took the position that, when an employee improperly obtained a copy of a bonus form and then publicly disclosed that form, the employer did not violate federal labor law by discharging the employee. In other words, the fact that the employee was engaging in protected concerted activity – by attempting to draw public attention to a work environment issue – did not categorically protect the employee. Employers should note that the Board will consider several factors in these types of situations (including whether the employer consistently enforced its policy against similarly situated employees). Nevertheless, this memo reaffirms that federal law does not give employees blanket protection when they violate employers’ policies in the course of undertaking protected activities.
Some confidentiality policies remain overbroad
Finally, one advice memo illustrates an important limit on employment policies. In this case, the employer maintained agreements with employees, which prohibited them from disclosing “employee information.” The Board has long recognized that an employer may not prohibit employees from discussing wages, benefits, or similar non-proprietary working conditions. Thus, the General Counsel deemed it unlawful for the employer to maintain agreements that prohibited this, and also for the employer to enforce those agreements.
In light of the Boeing decision, both unionized and non-union employers should consider reassessing their policies, and taking advantage of the additional flexibility they now possess. When doing so, employers should consider the guidance in these advice memos, so that they can protect their rights to the greatest extent possible.