Recently, the National Labor Relations Board (NLRB) has stricken a number of employer handbook policies, including employers' confidentially policies. On February 6, 2014, the NLRB continued this trend by determining that MCPc, Inc., a technology product and service company, violated the National Labor Relations Act (NLRA) by maintaining an "overly broad" confidentially policy and by discharging an engineer for his protected concerted activity.

In 2011, the MCPc engineer attended a "team building" meeting with the Director of Engineering and several other employees. The engineer communicated to his manager and coworkers that he had concerns about the heavy workload and suggested that the Company hire additional engineers to alleviate the problem. The engineer then criticized the Company's decision to hire a corporate executive with an annual salary of $400,000 because he believed the money could have been better used to hire additional engineers. Nearly one week later, the engineer was called into a meeting with the Company's CEO and accused of improperly accessing computer files to discover the salary information. The engineer had learned of the executive's salary information because he was working on a project that granted him special computer access privileges to the Company's internal database. The Company found that the engineer's actions violated the confidentiality policy and terminated his employment.

The Company's confidentiality policy provided that "dissemination of confidential information, such as personal or financial information, etc., will subject the responsible employee to disciplinary action or possible termination." The NLRB concluded that this confidentiality policy was overbroad because employees could reasonably construe the policy to prohibit a discussion of wages and other conditions of employment, which is protected activity under the NLRA. Accordingly, the NLRB ordered the Company to cease and desist from utilizing the confidentiality policy and fully reinstate the engineer with back pay and benefits.

In light of the NLRB's continued efforts to strike down "overbroad" policies, employers should review their confidentiality (and other) policies and ensure the restrictions are not overreaching in terms of employees' ability to discuss working terms and conditions.

For more information about this and other employment policies, contact an attorney at CGWG.