What You Need to Know About NLRB Actions in 2012 on Common Employee Handbook Policies, Part 2

Confidentiality Policy

The NLRB found a confidentiality policy to be overbroad.  While employers have a legitimate, business interest in restricting the improper disclosure of propriety information, a policy may violate Section 7 if confidential information is defined too broadly.  This violation could happen if the definition prevented an employee from discussing the terms or conditions of employment.  For example, a prohibition against disclosing personnel information to any person outside the business when the employee could face legal action or firing may be too broad because is prohibits employees from talking about their own personal wages or job conditions.

At-Will Policy

Tennessee is an at-will employment state.  Many employers adopt policies making clear that employees are working at-will.  The NLRB ruled that policy language saying that the at-will employment relationship cannot be modified or altered would violate the NLRA because employees may request to change at-will status.  The NLRB Acting General Counsel then released Advice Memoranda reviewing at-will employment clauses from two employee handbooks, noting that both were lawful under the NLRA.

Policy impacting use of Social Media

Whether in the context of harassment, bullying, social media, or communications, policies that restrict comments made on social media could arguably have a chilling effect on an employee’s Section 7 rights.  Policies that have zero tolerance language are ripe for concern.  Comments or communications by the employee may constitute concerted activity if they are for the purpose of mutual aid or protection.  If the comments are made as a step toward group action to defend workers, then the action may be protected.

Policy restricting Negative or Adverse Comments

A policy that restricts employees from making statements that purportedly damage the business, defame another individual, or damage another person’s reputation may be considered overbroad because it could prevent an employee from engaging in protected communications critical of the employer or its representatives.  Policies against malicious, abusive, or unlawful behavior are not objectionable.

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About Andrew (Andy) Wampler

For over a decade, I have provided legal services to businesses and individuals in Northeast Tennessee. I spend time litigating breaches of contract, medical malpractice, and commercial disputes and have worked on a number of transactions. I also advise businesses, working much of my time on healthcare and employment matters.

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