Warning Against Inadvertently Disclosing Confidential Information Is Lawful: NLRB General Counsel's Office | Practical Law

Warning Against Inadvertently Disclosing Confidential Information Is Lawful: NLRB General Counsel's Office | Practical Law

The Office of the General Counsel at the National Labor Relations Board (NLRB) recently released an advice memorandum from an unfair labor practice (ULP) case where the NLRB ultimately found that Target Corporation's policies on the use of social media and communicating confidential information violated Section 7 of the National Labor Relations Act (NLRA) as overly broad, However, the Office of the General Counsel found the employer could lawfully warn employees to be cautious to avoid unwittingly disclosing confidential information. 

Warning Against Inadvertently Disclosing Confidential Information Is Lawful: NLRB General Counsel's Office

by Practical Law Labor & Employment
Published on 28 Jan 2014 • USA (National/Federal)
The Office of the General Counsel at the National Labor Relations Board (NLRB) recently released an advice memorandum from an unfair labor practice (ULP) case where the NLRB ultimately found that Target Corporation's policies on the use of social media and communicating confidential information violated Section 7 of the National Labor Relations Act (NLRA) as overly broad, However, the Office of the General Counsel found the employer could lawfully warn employees to be cautious to avoid unwittingly disclosing confidential information.
On January 23, 2014, the Division of Advice at the NLRB's Office of the General Counsel released an advice memorandum dated December 16, 2011, in which it recommended issuing a complaint against Target Corporation, finding that Target's rule on communicating confidential information in its social media policy unlawfully infringed on employees' NLRA Section 7 rights.
Ultimately, an NLRB administrative law judge (ALJ) and the panel (Board) heading the NLRB's judicial functions ruled mostly against Target on these and other unfair labor practice (ULP) complaint allegations. The ALJ's and Board's analysis and conclusions about the confidentiality provisions in the social media policy largely mirrored those in the advice memorandum. (See Legal Update, Confidentiality and Solicitation Policies Unlawful; Register-Guard Must Be Interpreted Narrowly; Parking Lot Policy Lawful: NLRB.)
The Target advice memorandum, however, provides new guidance that the NLRB would permit employers to warn their employees to avoid inadvertent leaks of confidential information, as long as the employer defines the scope of confidential information and does not preclude sharing information about terms and conditions of employment with fellow employees and third parties, such as unions. The General Counsel's Office found the following provision would be lawful, once Target defined the scope of confidential information, appropriately excluding information related to terms and conditions of employment:
Develop a healthy suspicion. Don't let anyone trick you into disclosing confidential information. Be suspicious if asked to ignore identification procedures.
The Division of Advice concluded that this provision does not violate the NLRA and should not be included in the complaint against Target because this provision of the social media policy:
  • Only advises employees to be cautious about unwittingly divulging confidential information.
  • Does not proscribe communicating any particular type of confidential information.
  • Would not reasonably be understood to apply to Section 7 activities because it ties confidential information to identification procedures.
The Division of Advice generally publishes advice memos at its discretion when the proceedings in the underlying case are complete and the analysis is instructive. It appears that the NLRB's Division of Advice released this advice memorandum, perhaps in light of Target's publicized data breaches, that the NLRA does not wholly prevent employers from implementing employment policies to protect against data breaches, as long as they:
  • Adequately define confidential information.
  • Do not preclude employees from sharing information about their employment terms and conditions, as they relate to Section 7 activity.
However, the analysis sets up an odd paradox, as the NLRB appears to:
  • Permit employers to discipline employees who inadvertently permit the disclosure of confidential information.
  • Prohibit employers from disciplining employees who deliberately share sensitive information, if that information includes information about employment terms and conditions.