NLRB STOMPS ON EMPLOYER’S CONFIDENTIALITY & NON-DISCLOSURE ENFORCEMENT

Lots of employer’s try to gag what employees or former employees can say about it, but it turns out that if that interferes with employees’ labor law rights, the NLRB is going to jump on that.  For example, in a case titled Harper Holdings, the Board convinced the employer to stop enforcing the following policies—formal or informal.

1. Any policy or rule that requires employees to refrain from conduct or communication, which may damage the goodwill, brand, or business reputation of the employer, and/or that requires employees to act in ways that merit the trust, confidence, and respect of all the employer’s employees, clients, and vendors.
2. The company’s Non-Compete and Confidentiality Agreement or any other policy or rule that:
   • prohibits employees from soliciting any employer clients, employees, or contractors for any reason;
   • prohibits employees from disclosing and/or discussing any materials obtained via employment with the employer including confidential business information (the definition of which broadly includes any materials obtained via employment at the employer) or salary information;
   • threatens legal action, including the employer’s right to seek minimum damages of $150,000 per employee solicitation plus any business damages sustained due to loss of revenue, interference of business functions, or loss of clients via solicitation or otherwise related to the direct or indirect result of the solicitation;
   • threatens to collect from employees the repayment of initial and continuing education training costs, or the repayment of any other funds, and all associated legal or collection costs, if employees violate the terms of the unlawful Non-Compete and Confidentiality Agreement or similar policy;
   • prohibits employees from discussing the terms of the policy with anyone outside of legal counsel;
   • prohibits employees, both during and after employment, from making negative comments about the employer;

Union reps should watch out for these clauses when negotiating voluntary terminations in lieu of adverse action agreements.  If the employer, insists on them, the employee can void the entire agreement and get back pay. Union negotiators should review agency policies to make sure there are no similar provisions there.