Tuesday, August 12, 2014

Apparently, “information security” is now an unfair labor practice

In Fresh & Easy Neighborhood Market (7/31/14) [pdf], the NLRB examined the following “Confidentiality and Information Security” policy:

We have an important duty to our customers and our employees to respect the information we hold about them and ensure it is protected and handled responsibly. The trust of our staff and customers is very important, so we take our obligations under relevant data protection and privacy laws very seriously. We should also regard all information concerning our business as an asset, which, like other important assets, has a value and needs to be suitably protected.

What does it mean for me? …

  • Keep customer and employee information secure. Information must be used fairly, lawfully and only for the purpose for which it was obtained.

The Board concluded that this directive reasonably tends to chill employees in their Section 7 rights to engage in protected concerted activity:

We find … that employees would reasonably construe the admonition to keep employee information secure to prohibit discussion and disclosure of information about other employees, such as wages and terms and conditions of employment…. In addition, the instruction to use information “only for the purpose for which it was obtained” reinforces the impression that the rule prohibits Section 7 activity, as the Respondent’s business purpose clearly does not include protected discussion of wages or working conditions with fellow employees, union representatives, or Board agents.

Here’s the problem with the Board’s  current application of the Section 7 “protected concerted” rules to employer policies. It presumes bad intent by the employer. The Board imagines a parade of horribles, and strikes down any policy on account of some hypothetical bad conduct by the employer.

Member Johnson picks up on these themes in his dissenting critique:

Of course, the relevant inquiry is whether employees would reasonably construe rules as restricting Section 7 activity, and not whether employers intended the rule to restrict Section 7 activity. But certainly, this fact does not support construing rules to presume a malicious intent on the part of the employer. An employer’s primary purpose in drafting employee handbooks and policies is not to stifle employee rights, but to attempt to comprehensively cover many topics, including compliance with other workplace statutes and policies that protect business interests and the workplace environment of its employees….

As an alternative approach, Member Johnson proposes giving the challenged rule a reasonable reading, instead of deconstructing it with an eye towards illegality.

I believe the best approach is to examine the overall context of a disputed rule—from the general purpose of the document in which the rule is contained, its introduction, its general sections and topics and accompanying explanatory texts, and finally, to the disputed rule and the text around it—to give a rule a reasonable reading.

While Member Johnson is 100% correct, his view is the minority view (at least for the next 30 months). Thus, employers would be prudent to carefully review all workplace policies in light of these gruesome standards, and seek the guidance of experienced labor counsel to draft or, at a minimum, review all handbooks and other workplace policies.