Wednesday, August 23, 2017

NLRB offers rare win for employer confidentiality policy

It’s been a rough few years for workplace policies at the NLRB. From communication policies, to social media policies, to conduct policies, to confidentiality policies, the NLRB has, time and again, struck down facially neutral, garden variety employer policies as overly restrictive of employees’ section 7 rights to engage in protected concerted activity under the National Labor Relations Act.

Employer wins on this issue have been few and far between. As a result, when we get a win, it’s reason to celebrate. Well, employers, pop those champagne corks, because earlier this week, in Macy’s, Inc. [pdf], we received just such a win.

At issue in the case was Macy’s “confidential information policy,” which prohibited employees from using or divulging company confidential information such as marketing plans, pricing strategies, financial performance, negotiations with business partners, information about employees, and documents that contain social security numbers or credit card numbers.

The Board rebuked a challenge by a union representing certain of Macy’s employees that the policy chilled workers’ rights. To the contrary, the Board concluded that Macy’s narrowly tailored the policy to apply only to specific categories of sensitive confidential information, such as customer social security and or credit card numbers. 

This case is a great example of how employers can draft a narrow workplace policy to pass muster under the NLRB’s recent spate of employer-unfriendly decisions on this issue. It’s also a hopeful omen that under President Trump’s employer-friendly NLRB, the Board’s abuse of employers on this issue is behind us.