By Eric B. Meyer
Last week, Jon Hyman at the Ohio Employer Law Blog was on point with this good post discussing a recent National Labor Relations Board Administrative Law Judge decision. The case involved what the NLRB General Counsel believed was an overly-broad social media policy in two regards:
Make sure to read Jon’s post for the full-scoop. I promise not to give away the ending (until later in this post, when I give away the ending). But, after the jump, I’m going to examine another aspect of the case; namely, a confidentiality provision that the Administrative Law Judge (ALJ) deemed overly broad. I’ll also add a few ideas for you to keep your confidentiality provisions compliant with the National Labor Relations Act.
There’s broad. And then there’s overly-broad.
The case is G4S Secure Solutions (USA) Inc. The confidentiality provision at issue stated:
The protection of confidential information, trade secrets, and company-specific operating procedures is vital to the interests and success of G4S Secure Solutions USA. Additionally, in the line of duty, you may come into contact with our customers’ confidential information.
Employees who improperly use, reveal, copy, disclose or destroy G4S or client information will be subject to disciplinary action, up to and including termination of employment. They may also be subject to legal action even if they do not actually benefit from the disclosure. Such information includes any information considered proprietary by G4S or the client organization.”
So what could possibly be the problem with this provision? I’ll tell you, or better yet, I’ll let the ALJ tell you:
The Handbook does not define “confidential information” or the “activities or policies” it references, nor does it affirmatively state that the rule will not be used to restrict Section 7 activity.”
As we’ve discussed several times on the blog, Section 7 of the National Labor Relations Act affords employees the right to discuss with one another the terms and conditions of employment. Consequently, any employer rule that could be reasonably construed as chilling that right is considered overly-broad and unlawful.
So, how can employers avoid the problem of overly-broad agreements?
This was originally published on Eric B. Meyer’s blog, The Employer Handbook.