NLRB: Overbroad Confidentiality Agreements Illegally Chill Speech

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By Casey C. Sullivan, Esq. on March 20, 2015 6:56 AM

T-Mobile's email and confidentiality policies violate the law by limiting employees' ability to talk about basic work issues and are illegal, an administrative judge with the NLRB ruled Wednesday. The communication giant's copious confidentiality policies were so broad that they illegally chilled employees' right to engage in protected activities, such as discussing workplace wages and conditions.

T-Mobile's policies were so expansive that even its entire employee handbook, with all the terms and conditions of employment, discipline, and performance review, was considered confidential. However, even more tailored policies, such as T-Mobile's requirement that employees refrain from discussing internal investigations, "clearly restrained" employee's rights to engage in Section 7 activity.

Ruling Highlights the Dangers of Broad Confidentiality Policies

Administrative Judge Christine Dibble's ruling emphasizes the risks employers take when they create overly expansive confidentiality policies. T-Mobile had argued that, when read in context, many of its policies made perfect sense and did not violate employees' rights. For example, T-Mobile argued that its classification of personal information about employees, such as their phone numbers, as confidential did not prevent all communication, but was meant to protect workers' privacy. Dibble was not convinced, finding that such policies could reasonably be interpreted by employees to limit their ability to communicate.

Among the policies the NLRB found violated the law were:

  • The treatment of terms, conditions and benefits of employment as confidential or proprietary information;
  • Requirements that employees not communicate with the media;
  • The implication that employees must report wage and hour complaints only internally;
  • Policies which prevented use of email for political or non-company purposes; and
  • Prohibitions against "detrimental comments" about the company.

The NLRB, however, upheld T-Mobile's ban on recording in the workplace.

Case Consolidated Appeals From Across the Country

The NLRB case brought together several complaints made regarding T-Mobile's actions and policies in sites throughout the country, including Albuquerque, New Mexico; Wichita, Kansas; Charleston, South Carolina; and New York City. The Communications Workers of America, which is currently fighting to unionize T-Mobile workers, alleged in its complaint that managers had taken several direct actions against unionization in violation of the National Labor Relations Act.

CWA claimed, for example, that one manager withheld "the benefit of providing a 'high five' gesture" to employees engaged in union activities. The NLRB's ruling did not address the company's high-five policy.

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