NLRB Rules To Confidentiality Provision In Employee Handbook Violates Federal Labor Law

On June 30, 2005, in Cintas Corp. and Union of Needletrades, Industrial and Textile Employees, the National Labor Relations Board (“NLRB”) held that a non-union employer violated the National Labor Relations Act (the “NLRA”) by maintaining a confidentiality policy that employees could “reasonably construe” as prohibiting them from sharing information about their wages and working conditions with co-workers, not just outside third parties.

Under the NLRA, all employees–even employees who are not represented by a union–have the right to engage in “concerted activity” for “mutual aid and protection,” which includes the right to exchange information among themselves, and with a labor union that seeks to organize them, about their wages and working conditions. Managers and supervisors do not have such a legal right. The NLRB found a violation in Cintas Corp. even though the policy in the handbook did not specifically refer to wages and working conditions and the company had not disciplined anyone for discussing wages and working conditions.

The decision in Cintas Corp. is a reminder that the NLRA can affect an employer’s policies even if the workers are not represented by a union. It is also a reminder that, in most situations, an employer cannot lawfully discipline an employee for discussing wages and working conditions with co-workers; a policy that states otherwise violates the NLRA. Employers should carefully review their policies and agreements containing confidentiality obligations to ensure that they do not unlawfully restrict protected concerted activities. It may be necessary to redraft some such policies or agreements to ensure that they apply only to unprotected activities, such as discussions with a vendor, customer or competitor.