The National Labor Relations Board (NLRB) has held that the confidentiality provision contained in an employer's handbook violates the National Labor Relations Act (NLRA) by unlawfully restricting employees' ability to discuss wages and conditions of employment with their fellow employees and the union.
The National Labor Relations Board (NLRB) has held that the confidentiality provision contained in an employer's handbook violates the National Labor Relations Act (NLRA) by unlawfully restricting employees' ability to discuss wages and conditions of employment with their fellow employees and the union. See Cintas Corp. (June 30, 2005).
Cintas' handbook (which it calls its "partner reference guide") contained a confidentiality provision that stated: "We honor confidentiality. We recognize and protect the confidentiality of any information concerning the company, its business plans, its partners, new business efforts, customers, accounting and financial matters." The term "partners" refers to employees of Cintas Corp.
Section 8(a)(1) of the NLRA prohibits interference, restraint, or coercion of employees from exercising rights guaranteed in § 7 of the NLRA. Section 7 rights include the right to self-organization, to form, join, or assist labor organizations, to bargain collectively, and to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection.
In addressing whether Cintas' confidentiality provision violates the NLRA, the Board noted that it does not explicitly restrict § 7 activity. Accordingly, it would only be deemed to violate the NLRA if: (1) employees would reasonably construe the language to prohibit § 7 activity; the rule was promulgated in response to union activity; or the rule has been applied to restrict the exercise of § 7 rights. The Board determined that the unqualified prohibition of the release of "any information" regarding the employer's "partners" (that is, employees) could reasonably be construed by employees to restrict discussion of wages and other terms and conditions of employment with their fellow employees and with the union. Thus, since the provision could have a chilling effect on § 7 rights, it violated the NLRA.
The Board ordered the company to rescind the language of the policy and provide all employees with inserts for their partner reference guides that state that the language has been rescinded or provide the language of lawful provisions or publish and distribute a revised partner reference guide that does not contain the unlawful provisions or provides the language of lawful provisions. The Board also required the company to post notices outlining employees' § 7 rights, stating that it will rescind the language found unlawful, and stating that it will provide employees with the inserts or revised reference guides discussed above.
Employers' Bottom Line:
Employers should review the terms of any confidentiality rules distributed to employees to ensure that these rules comply with the Board's requirements and are not too broadly worded or vague. If you have any questions regarding this case or labor or employment issues in general, please contact the Ford & Harrison attorney with whom you usually work.