Ask The Lawyer By: Daniel A. Gwinn, Esq.
QUESTION: We recently discovered that one of our employees has been complaining about the Company online. Specifically, he’s posted what workers in different positions in the Company earn, and griped that it is far too little – especially when compared to the bonus received by our CEO (the CEO’s bonus was published in a news report). We would like to discharge the worker for violating the confidentiality provision of our Employee Handbook, which forbids sharing of “confidential, trade secret, or protected information.” Can we fire him without repercussions?
ANSWER: Unfortunately, there are often repercussions involved when you fire an outspoken employee, the question should really be whether any complaint the employee makes about the discharge will have legal merit. And, based on the facts you provided – it might.
While an employer can discharge an employee for just about any reason (as long as it does not implicate rights protected under anti-discriminations laws), firing an employee for the exercise of speech or conduct related to terms and conditions of employment (like wages and hours) could run afoul of the National Labor Relations Act.
Under Section 7 of the Act it is an “unfair labor practice” to “interfere with, restrain, or coerce employees” who are exercising their “right to self-organization … and to engage in other concerted activities for the purpose of … mutual aid or protection.” The Act not only protects the rights of employees to unionize, but also to “join together to advance their interest as employees” and protects speech that refers to the “terms and conditions of employment.”
Your confidentiality policy might be in violation of the National Labor Relations Act if it classifies any kind of salary information as confidential and prevents workers from sharing or discussing it.
Until recently, it was enough that a workplace rule could hypothetically infringe workers’ rights, even though the rule did not explicitly bar NLRA protected activity and was put in place for neutral purpose. That changed in December 2017 when National Labor Relations Board, the group charged with enforcing the provisions of the NLRA, reexamined the standards for protecting Section 7 rights.
In its Boeing decision, the NLRB ruled that Boeing’s policy restricting the use of cameras or camera phones on site in order to protect the “highly sensitive” nature of the work at the company’s facility was justified in order for Boeing to maintain “the security of its facilities and of the information housed therein … and for national security.” The possibility that a Boeing employee would reasonably construe the rule to prohibit concerted activity was insufficient to overcome the company’s legitimate justification for the rule.
Last year, in LA Specialty Produce, the NLRB applied the Boeing test to an employer’s confidentiality rule. The challenged section of the rule required employees to keep confidential information “regarding matters that are confidential and proprietary of [the employer] including but not limited to client/vendor lists.” The Board reversed an earlier ruling that held the rule violated Section 7 because it could prohibit employees from sharing “even customer and vendor names” with third parties. Employees would therefore be prohibited from exercising their right to appeal to customers in a labor dispute, a right recognized under the NLRA. The Board dismissed these concerns, noting the policy did not prohibit employees from talking to clients or vendors, and holding that the employer’s legitimate reason for protecting its customer and vendor information outweighed the possibility that an employee might view the rule as affecting Section 7 rights.
The Board indicated it would reach a different result if a confidentiality rule could be interpreted by a reasonable employee as affecting core Section 7 rights – like the right to discuss wages. Then, that interest would outweigh “any possible employer interest.” Even there, however, the Board recognized an employer may have a legitimate interest prohibiting workers from using confidential information that was improperly obtained. For example, the Board noted that an employer could lawfully discharge an employee who “knowingly distributed salary information illicitly obtained from confidential wage table compiled by the employer for its own internal use.”
If your policy defines “confidential information” so broadly that workers would be prevented from discussing and comparing their own wage and salary information, your policy is overbroad and illegal under the NLRA – and you should think twice before discharging the worker.
Whether the worker was engaged in any protected Section 7 activity when he posted the salary information, or was just griping, is a separate question.
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ASK THE LAWYER
By: Daniel A. Gwinn, Esq.
Attorney and Counselor at Law