Employers have long maintained confidentiality policies to restrict employees from disseminating classified company information. The need for confidentiality is imperative today in light of the widespread use of social media and recent online security breaches. However, employees have the right under the National Labor Relations Act (NLRA) to discuss their terms and conditions of employment, and the National Labor Relations Board has thus wrestled with protecting company confidentiality and preserving employee rights. This month’s column will describe the board’s recent decisions regarding when employers’ confidentiality policies violate or are valid under the NLRA.
‘Noel Canning’
As a preliminary matter, it is important to note that the Supreme Court’s ruling in NLRB v. Noel Canning, 134 S.Ct. 2550 (2014), may have a significant impact in the area of employment confidentiality. In Noel Canning, the court held that President Barack Obama did not have authority to make three recess appointments to the board in January 2012. Decisions issued by the board from January 2012 to mid-2013 thus lacked the required three-member quorum and became invalid.
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