An employer may discipline employees who engage in disloyal conduct by disclosing confidential information obtained in the course of their job duties, the Board’s Division of Advice has found, concluding that an employer did not commit an unfair labor practice (under Section 8(a)(1) of the NLRA) when it discharged an employee.  IAM District Lodge 751, 19-CA-119268 (Div. of Advice Aug. 18, 2014).

This case shows where the line is drawn between employees’ rights to engage in protected concerted activity by sharing an employer’s “confidential” information and disloyal conduct not protected by the Act.

The employee-charging party was a payroll clerk/staff assistant in the accounting office for a local union.  She had signed an agreement to maintain the confidentiality of information regarding the union’s personnel and operations.  When she was told by the union’s secretary/treasurer that the employer would be revising its leave policy because of abuse by a certain clerical employee, she advised that employee that the secretary/treasurer had had said her conduct was a motive for changing the leave policy.

The employer-union suspended and later terminated the charging party for disseminating the confidential information. Finding no violation of Section 8(a)(1), the Division of Advice explained that disloyal conduct is not protected by the Act if “the information that was disclosed was of a type which the employer had a right to expect would be treated as confidential, such that the disclosure was fundamentally a breach of trust.” The Division of Advice noted that the information in this case qualified since it was regarding “the Employer’s concern about leave abuse and its investigation of an employee’s leave abuse.” The Division of Advice also found it noteworthy that the “Employer took several steps to maintain the confidentiality of personnel decisions and conversations about personnel decisions,” including requiring the employee to sign a confidentiality agreement. It concluded that, because she learned of the policy change and investigation “solely because of her job responsibilities…, [b]y repeating the impetus behind the change in leave policy and warning the employee under investigation, the Charging Party violated her duty to maintain the confidentiality of this information, and thus was lawfully terminated for breaching that duty.”

Although the Board often has found employers’ restrictions on employees’ dissemination of company confidential information to be overbroad and unlawful, employers may lawfully require employees to sign confidentiality agreements to protect legitimate confidential information.  Such agreements should be narrowly tailored to include information that could be obtained only in the course of the employee’s job.

 

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Photo of Daniel D. Schudroff Daniel D. Schudroff

Daniel D. Schudroff is an Associate in the New York City office of Jackson Lewis P.C.. His practice is focused on traditional labor matters, employment litigation, and counseling. Mr. Schudroff represents clients in both federal and state courts, as well as before administrative…

Daniel D. Schudroff is an Associate in the New York City office of Jackson Lewis P.C.. His practice is focused on traditional labor matters, employment litigation, and counseling. Mr. Schudroff represents clients in both federal and state courts, as well as before administrative agencies including the National Labor Relations Board, New York State Public Employment Relations Board, Equal Employment Opportunity Commission, New York State Division of Human Rights, New York City Commission on Human Rights, and New York State Department of Labor. Mr. Schudroff also advocates on behalf of employers at arbitration hearings and during collective bargaining negotiations. In addition, Mr. Schudroff regularly advises unionized and non-unionized clients with respect to a wide array of issues arising under the National Labor Relations Act and Labor Management Reporting and Disclosure Act. Mr. Schudroff also regularly counsels employers affected by the Fair Labor Standards Act, Railway Labor Act, Worker Adjustment and Retraining Notification Act, Uniformed Services Employment and Reemployment Rights Act, New York Labor Law, and Taylor Law.

Photo of Philip B. Rosen Philip B. Rosen

Philip B. Rosen is a Principal in the New York City office of Jackson Lewis P.C. and a member of the Firm’s Management Committee. Mr. Rosen also leads the firm’s Labor Practice Group. He joined the Firm in 1979 and served as Managing…

Philip B. Rosen is a Principal in the New York City office of Jackson Lewis P.C. and a member of the Firm’s Management Committee. Mr. Rosen also leads the firm’s Labor Practice Group. He joined the Firm in 1979 and served as Managing Partner of the New York City office from 1989 to 2009.

Mr. Rosen lectures extensively, conducts management training, and advises clients with respect to legislative and regulatory initiatives, corporate strategies, business ethics, social media, reorganizations and reductions-in-force, purchase/sale transactions, sexual harassment and other workplace conduct rules, compliance with the Americans With Disabilities Act, wrongful discharge and other workplace litigation, corporate campaigns and union organizing matters, collective bargaining, arbitration and National Labor Relations Board proceedings. He has been quoted by the press on many labor matters, including the National Labor Relations Board’s recent initiatives on protected concerted activity and the proposed Notice Posting requirements.

Photo of Howard M. Bloom Howard M. Bloom

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues.

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues. He trains and advises executives, managers and supervisors on union awareness and positive employee relations, and assists employers in connection with union card-signing efforts, traditional union representation and corporate campaigns, and union decertification campaigns. He also represents clients at the National Labor Relations Board in connection with bargaining unit issues, objections and challenges, as well as unfair labor practice investigations and trials. Mr. Bloom also has been the spokesperson at countless first and successor contract collective bargaining negotiations, and regularly advises on collective bargaining agreement administration issues, including grievance/arbitration issues.

Mr. Bloom has appeared before the Massachusetts Supreme Judicial Court, the U.S. Court of Appeals for the District of Columbia, several U.S. District Courts, the National Labor Relations Board, the Massachusetts Labor Relations Commission, the Equal Employment Opportunity Commission and the Massachusetts Commission Against Discrimination.

Mr. Bloom speaks frequently to employer groups on a wide range of labor and employment law topics. He also has written extensively on labor and employment law for a variety of publications, including New England Business magazine, The Boston Globe and the Boston Business Journal. He also is editor of and a frequent contributor to the Jackson Lewis Labor & Collective Bargaining Blog.

While attending law school, he was the Executive Editor of The Advocate: the Suffolk University Law School Journal and President of the Student Bar Association.

Mr. Bloom is a diehard baseball fan. His first book, The Baseball Uncyclopedia: A Highly Opinionated Myth-Busting Guide to the Great American Game, was published in February 2006.