National Labor Relations Act

We have been closely monitoring the battle over the legality of class and collective action waivers under the National Labor Relations Act (NLRA). The National Labor Relations Board (NLRB) has been steadfast in its position that such waivers run afoul of the NLRA.  The Fifth Circuit was the first Circuit Court to weigh in, consistently … Continue Reading
NLRB Begins New “Educational” Campaign in Run-Up to Quickie Election Rule In a series of tweets, the National Labor Relations Board is using social media in an attempt to increase  concerted and union activity under the NLRA. Starting on February 5, 2015, the NLRB began tweeting exhortations to non-union employees  to utilize the Agency’s services and notifications to all employees about the broad jurisdictional reach of the NLRA:  ... Continue Reading

By Charles F. Walters

This blog recently discussed the upswing in EEOC retaliation charges and what employers can and should do about this undeniable trend. A National Labor Relations Board (NLRB) case now before the D.C. Circuit Court of Appeals on appeal provides a powerful reminder that non-union employers must also be concerned about retaliating against employees for exercising their … Continue Reading

The Death of Courtesy and Civility Under the National Labor Relations Act In 2012, the National Labor Relations Board (NLRB or the “Board”) found a “courtesy” policy unlawful. Since then, the NLRB has continued to create more and more tension between the National Labor Relations Act (NLRA or the “Act”) and employers’ legitimate interests in maintaining and enforcing workplace guidelines governing courtesy in a nondiscriminatory fashion. This... Continue Reading
Most employers are aware that Title VII of the Civil Rights Act protects individuals from harassment and discrimination, and further protects them from filing claims alleging such harassment or discrimination. However, many employers are not aware that Section 7 of the National Labor Relations Act (NLRA) also protects employees who attempt to garner support for … Continue Reading
Reminder to federal contractors about NLRA Employee Rights poster obligations

By Jamie LaPlante

There is some confusion in the employer community about the obligation to post a notice concerning union organizing rights. Most employers do not have the obligation, but many companies with federal contracts or subcontracts do.

In 2013, as a result of the National Ass’n of Manufacturers v. NLRB, 717 F.3d 947 (D.C. Cir. 2013) and Chamber of Commerce v. NLRB, 721 F.3d 152 (D.C. Cir. 2013) decisions, the National Labor Relations Board (NLRB) rule requiring all private employers to post a notice to employees of their rights under the National Labor Relations Act (NLRA) was …

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Following a trend that has developed over the last several years,[1] the National Labor Relations Board (the “Board”) recently found that the termination of a Starbucks employee violated the National Labor Relations Act (the “NLRA” or the “Act”), even though the employee had engaged in extremely offensive, obscenity-filled conduct in the presence of customers.[2] During... Continue Reading
Fifth Circuit Holds Confidential Information Policy Protecting Company Financial and Personnel Information Violates the NLRA

In an opinion likely effecting many Texas employers, the Fifth Circuit Court of Appeals held that an employer's confidentiality policy that prohibited employees from disclosing all company financial and personnel information without a carve-out for employee wage information violated the National Labor Relations Act.

Flex Frac, a non-union employer, required all of its employees to sign the following confidentiality policy:

Confidential Information

Employees deal with and have access to information that must stay within the Organization. Confidential Information includes, but is not limited to, information that is related to: our customers, suppliers, distributors; Silver Eagle Logistics LLC organization management and marketing processes, plans and ideas, processes and plans, our financial information, including costs, prices; current and future business plans, our computer and software systems and processes; personnel information and documents, and our logos, and art work. No employee is permitted to share this Confidential Information outside the organization, or to remove or make copies of any Silver Eagle Logistics LLC records, reports or documents in any form, without prior management approval. Disclosure of Confidential Information could lead to termination, as well as other possible legal action.

Following her termination, a former employee filed a charge with the NLRB and the Acting General Counsel for the Board issued a complaint charging the employer with maintaining a rule prohibiting employees from discussing employee wages.  The ALJ found that while there was no specific prohibition against employees discussing their wages with one another, the policy might be reasonably interpreted as restricting employees' right to discuss their wages with one another and therefore violated Section 7 of the NLRA.

On appeal to the federal court of appeals, the court restated the long-standing, well-established rule that "a workforce rule that forbids the discussion of confidential wage information between employees" violates the NLRA.  In analyzing the confidentiality provision at issue, the court concluded that it could be reasonably construed to prohibit employee discussion of wages both inside and outside the company and ordered that the NLRB's order prohibiting Flex Frac from promulgating and maintaining its confidentiality policy be enforced. 

There are likely many Texas employers that have confidentiality policies that cover and protect company financial and personnel information but do not explicitly carve out employee wage information from the definition of that protected information.  Employers with simiar confidentiality provisions may want to consider revising those policies to explicitly exclude employee wages from coming within the scope of their policies so they are not subject to a charge that they have committed an unfair labor practice.

You can download the full copy of Flex Frac v. NLRB here.