Lisa V. Ryan, Attorney at Law
The recent decision from the National Labor Relations Board (“Board”) finding university football players are “employees” allowed to organize under the National Labor Relations Act (the “Act”) has captured the nation’s attention. But for most California employers, the threat of unionization is not as likely as the Board finding violations contained in standard employee handbook policies. The Board continues to take an activist role, striking a number of such policies, including employers’ confidentiality and social media policies. On February 6, 2014, the NLRB determined that employer MCPc, Inc., a technology product and service company, violated the Act by (1) maintaining an “overly broad” confidentiality policy and (2) by discharging an employee for his related protected concerted activity. (See NLRB Case No. 06-CA-063690.) The controversy involved the technology company MCPc’s confidentiality provision in its employee handbook which read, in part: [D]issemination of confidential information within [the company], such as personal or financial information, etc., will subject the responsible employee to disciplinary action or possible termination . . . . The company fired an employee after he disclosed at a meeting that the salary paid to a particular executive, stating the specific amount of the executive’s compensation, could have been used to hire additional engineers. The employee was accused of improperly accessing computer files to discover the new executive’s salary in violation of the confidentiality policy and his employment was then terminated. The NLRB upheld an administrative law judge’s decision, finding that MCPc’s internal confidentiality policy was overbroad and violated Section 8(a)(1) of the Act because employees would reasonably construe the overbroad rule to prohibit discussion of wages or other terms and conditions of employment with their coworkers. In upholding the ruling against MCPc for the termination of the employee, the NLRB agreed that the employee’s discussion of the executive’s compensation was protected discussion because it involved the terms and conditions of his employment, i.e. staffing shortages. The Act protects the rights of employees to act together to address conditions at work, with or without a union. This protection extends to certain work-related conversations conducted on social media, such as Facebook and Twitter. Thus, in recent years, the NLRB has used the same rationale to find many employers’ social media policies to be in violation of the Act. In 2012, the Board found that it was unlawful for a non-profit organization to fire five employees who participated in Facebook postings about a coworker who intended to complain to management about their work performance. (See Hispanics United of Buffalo, 359 NLRB No. 37.) In its analysis, the Board majority applied settled Board law to social media and found that the Facebook conversation was concerted activity and was protected by the NLRA. Earlier this year, a judge again ruled that many provisions of an employer’s social media policy violated the law, including fairly standard provisions requiring employees to confine social media commentaries “to topics that do not disclose any personal or financial information of employees, customers or other persons, and do not disclose any confidential or proprietary information of the Company.” The ALJ held that such provisions “clearly violate the [Act] as employees would reasonably construe these provisions as preventing them from discussing their conditions of employment with their fellow employees, radio and television stations, newspapers or unions, or limiting the subjects that they could discuss.” (See Boch Imports, Inc. d/b/a Boch Honda (2014) Case No. 1-CA-83551.) It is important for all employers to remember that employer policies should not be so sweeping that they prohibit the kinds of activity protected by federal labor law, such as the discussion of wages or working conditions among employees – even if done in a very public forum such as Facebook or Twitter. Employers must also review and evaluate whether their confidentiality policies are narrowly tailored to protect against the disclosure of trade secrets and other confidential or proprietary information. That is why employers’ policies should be evaluated periodically to ensure current practices do not run afoul of the law.