Your Handbook May be Hazardous Under the NLRA

The National Labor Relations Act (NLRA) prohibits employers from interfering with, restraining or coercing employees in the exercise of their rights to self organization, to form, join or assist labor organizations, or engage in other concerted activities for their mutual aid or protection. Even a non-unionized employer can run afoul of the NLRA and face an unfair labor practices charge.

A recent decision in the Federal Court of Appeals highlights a potentially treacherous problem for employers: the possibility that certain provisions in an employee handbook may violate the NLRA.

Employee handbooks often contain confidentiality provisions designed to prevent employees from disclosing company secrets or financial matters to competitors. Employers typically also take measures to prevent their employees from discussing confidential information such as salary or other terms and conditions of employment among co-workers in order to enhance morale and decrease workplace friction. Broadly worded, these types of restrictions may be found to chill an employee’s rights, whether explicitly or through reasonable interpretation, to engage in protected activity under the NLRA.

Employers must narrowly tailor their confidentiality clauses in their handbooks so as not to interfere with protected employee activity while balancing the employer’s interest in protecting its confidentiality.

What steps can an employer take to ensure the handbook does not cause a problem?

  1. Define confidential information as narrowly as possible with respect to information about employees (e.g., wages). Avoid broad sweeping language that attempts to define confidential information that include “all information regarding other employees” or “information regarding wages”.
  2. Remove any language that specifically prohibits employees from discussing their wages or other terms and conditions of employment.
  3. Narrowly define those individuals to whom confidential information may not be disclosed. For example, employees may not disclose confidential information to competitors of the company or to any other employers when leaving the company.
  4. Add a clause which specifically states: “This policy is not intended and should not be construed to interfere, limit or prevent an employee from exercising any of his or her rights under the NLRA.”

For further information, please contact one of the experienced lawyers available to serve your legal needs.