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NLRB Update

02.21.2013

Since June 2012, the National Labor Relations Board (NLRB) and NLRB administrative law judges have issued five rulings regarding the legality of employers’ confidentiality policies, ruling that three of the policies at issue violated the National Labor Relations Act (NLRA) and reflects a continuing trend in the prosecution of unfair labor practice charges concerning policies or agreements with provisions intended to protect the legitimate confidential and proprietary information of the employer. In the most recent case, Quicken Loans, Inc., Case No. 28-CA-75857, decided January 8, 2013, the NLRB administrative law judge determined not only that language prohibiting employees from disclosing Confidential Information (which included information about personnel) unlawfully restricted the employees’ right to discuss the terms of employment, but also that language prohibiting employees from publicly criticizing, ridiculing, disparaging, or defaming the employer or its products also violated the NLRA. According to the administrative law judge, the NLRA allows employees to criticize their employer or employer’s products as part of their protected rights. In holding unlawful the kinds of provisions that many employers adopt as standard practice, these decisions serve as a caution to employers to draft their policies carefully. In each case, the focus was on whether the policy could be read to prohibit employees from discussing wages, benefits, or other terms and conditions of employment with their colleagues or union representatives. Employers should consider reviewing their policies and where appropriate, making revisions and adding disclaimers to their employment agreements to demonstrate that none of the provisions within are intended to prohibit or chill employees’ rights to engage in protected concerted activity.

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