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Employment Law Alert: Important NLRA Case

In a decision issued on Friday that should be of interest to all employers, the D.C. Circuit Court of Appeals agreed with the NLRB that an employer's confidentiality policy violated the Act. Cintas Corp. published a policy in its employee handbook under the heading "We honor confidentiality," which said that "[w]e recognize and protect the confidentiality of any information concerning the company, its business plans, its partners, new business efforts, customers, accounting and financial matters." The handbook also contained a separate disciplinary rule which noted that employees could face discipline for violating a "confidence" or releasing confidential information without authorization.

UNITE HERE filed an unfair labor practice charge against Cintas, alleging that the confidentiality policy was unlawful on its face and violated employees' Section 7 rights, even in the absence of any evidence that the policy had ever been used to discipline employees for pro-union activities. Section 7 of the Act, as you know, guarantees employees the right to form, join or assist unions, and to engage in other concerted activities for their mutual aid or protection. Section 8(a)(1) of the Act makes it unlawful for employers to interfere with these rights.

The Board found that the mere existence of this policy violated the NLRA, arguing that its inclusion in the employee handbook, together with a disciplinary rule prohibiting the release of confidential information without authorization, would have a chilling effect on employees' Section 7 rights.

The D.C. Circuit agreed. Although the Court noted that Cintas' policy did not expressly forbid discussions protected by the Act and had never been used by the Company to discipline any employee for exercising their Section 7 rights, it nevertheless agreed with the Board that the policy was unlawful, and its inclusion in Cintas' employee handbook violated the Act. The policy, said the Court, was overly broad because it did not carve out a specific exception for employees engaging in activities protected by Section 7.

Bottom Line

This case is an unfortunate result for employers and, as many of you have confidentiality policies of one form or another, I would strongly recommend that you review them in light of this decision.



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