In Target Corp., the key litigated issues were whether, under the NLRA, an employer may lawfully:

The United Food & Commercial Workers Local 1500 union filed unfair labor practice (ULP) charges against Target Corporation, claiming its employee handbook contained unlawful policies, including:

The union also filed objections after losing a representation election at Target. Review of the union's election objections were consolidated with the ULP case because they raised similar issues.

An NLRB administrative law judge (ALJ):

Target filed exceptions to the ruling.

On April 26, 2013, the three-member panel heading up the NLRB's judicial functions (Board) issued a decision upholding the ALJ's findings and conclusions as to the information security and solicitation policies, and the election results. However, the Board reversed the ALJ's finding that Target violated the NLRA by maintaining its parking lot policy.

The Board found Target's information security policy was unlawful because the policy's definition of confidential information included "all Target information that is not public," and listed employee personnel records as one example. According to the Board, this is similar to the Board's earlier cases holding rules prohibiting the disclosure of "personnel information and documents" and "employee records" were unlawful (Flex Frac Logistics, LLC and DirecTV U.S. DirecTV Holdings, LLC).

The Board similarly found that Target's solicitation policy was unlawful, as it prohibited employees from soliciting, distributing literature, selling merchandise or conducting monetary transactions on Target premises for personal profit, commercial purposes or a charitable organization that was not part of Target's Community Relations program. Target's policy did not define or provide examples of what constitutes "[f]or commercial purposes," and the Board found that without sufficient context to explain that union and other Section 7 activity were excluded from the restrictions, employees could reasonably construe these words to restrict protected Section 7 activity.

However, the Board found Target's parking lot policy was lawful, because:

Finally, the Board agreed that the election results should be set aside. The Board found that Target's maintenance of unlawful rules alone was sufficient to set aside the election, but also relied on other infractions Target committed during the critical election period, including a coercive interrogation and a threat of unspecified reprisals. The Board affirmed the order for a new election and ordered a nationwide rescission of Target's offensive policies.

The Board heavily scrutinizes confidentiality policies, and employers must provide examples of what is considered "confidential" in their policies for those policies to have a chance of being found lawful. However, even if employers do provide examples, they should expect the Board to find policies that expressly ban the disclosure of "employee information" unlawful, as employees could reasonably construe that language to restrict their rights under the NLRA to discuss their terms and conditions of employment with fellow employees or union agents.

As previously noted, the Board has also been undercutting its prior holding in Register-Guard without formally overruling it (see Legal Updates, Acquiring Nursing Home Operator Forfeits Right to Set Initial Terms and Conditions of Employment: NLRB and Unfazed by Ruling on Recess Appointments, NLRB Condemns Employer's Restrictions on Unapproved Communications with Media, Law Enforcement). In Register-Guard, the Board, in general terms, held that an employer could lawfully prohibit solicitation based on the subject area of the communications as long as it did not divide permissible from impermissible solicitations on a Section 7 basis. The Board's decision in Target Corp. clarifies that the Register-Guard standard applies only to an employer's restrictions on employee solicitations on employer-owned equipment, and not employee solicitations generally (in the case of Register-Guard, its e-mail system). Since this decision further narrows the Register-Guard holding, employers that drafted their solicitation and distribution policies to track the standards set in Register-Guard should consider revising those policies.