Workplace Confidentiality and Media Contact Rules Deemed Lawful Under Federal Labor Law
By Daniel Combs
The National Labor Relations Board (“NLRB”) recently held that workplace rules restricting employees from (1) divulging confidential client and vendor lists, and (2) responding to media inquiries on behalf of a company are lawful under the National Labor Relations Act (“Act”).FN1 The confidentiality policy at issue in LA Specialty Produce Company stated in part that “Every employee is responsible for protecting any and all information that is used, acquired or added to regarding matters that are confidential and proprietary of [the company] including but not limited to client/vendor lists.” The media contact policy stated that “Employees approached for interview and/or comments by the news media cannot provide them with any information. Our President . . . is the only person authorized and designated to comment on Company policies or any event that may affect our organization.”
In finding these rules were lawful, the NLRB applied its recent Boeing Co. test, which first asks whether a reasonable employee would view such a rule as potentially interfering with the right under Section 7 of the Act to engage in activities with other employees for the purpose of improving terms and conditions of employment, and, if so, assesses whether legitimate business justifications for the rule outweigh adverse impacts on employee rights.FN2 The NLRB in LA Specialty Produce Company reasoned that reasonable employees would view the confidentiality rule as protecting sensitive and valuable customer and vendor lists—not as a restriction on talking with customers and vendors about organizing efforts. Similarly, the NLRB found reasonable employees would view the media contact policy as restricting them from responding to media inquiries on the company’s behalf when approached by the media—not from speaking to the media about terms and conditions of employment generally.FN3
Practical Takeaway
Although the NLRB applies a far more reasonable standard when reviewing workplace policies than it did under the previous Administration, wording remains important. Employers are encouraged to contact one of Campbell Litigation’s attorneys to assess existing workplace policies or to discuss options for protecting company interests through new policies.
Footnotes:
FN1: LA Specialty Produce Company and Teamsters Local 70, International Brotherhood of Teamsters, 368 NLRB No. 93 (2019).
FN2: See Boeing Co., 365 NLR No. 154, slip op. at 16 (2017).
FN3:The Act protects employees when they speak to the media about working conditions, labor disputes, and other terms and conditions of employment. LA Specialty Produce Co., 368 NLRB No. 93, slip op. at 4-5 (2019).