Professional Service Agreement

NLRB Shows When It Will Uphold Policies Regarding Confidentiality, Cell Phones, and Email Usage

February 13, 2020

Since the National Labor Relations Board ("NLRB" or "Board") issued employer-friendly decisions in late 2017, the Board has continuously illustrated when employment policies will survive scrutiny under the National Labor Relations Act ("NLRA"). The NLRB held that a facially neutral confidentiality agreement did not unlawfully limit or prohibit protected concerted activities, where it barred employees from disclosing “all private information not generally known in the industry and not readily available . . . including . . . [the employer’s] employee information.” The Board reached this decision even though it would be unlawful for an employer to prohibit employees from disclosing certain types of employee information, including information about their own compensation. The Board reasoned that, because the agreement protected employee information of the employer, employees would not interpret it to apply to their own compensation information (or other employment information they may lawfully disclose). The NLRB also deemed it lawful for the employer to maintain a policy that prohibited truck drivers from possessing cell phones in certain work locations (e., within the cabs of trucks and other large equipment). Finally, the NLRB upheld a policy barring employees from using an employer’s email for “personal purposes.”This holding resulted from the Board’s decision to permit an employer to allow employees to use its email system only for work-related purposes (so long as the employer maintains and applies that policy in a non-discriminatory manner). Because there was no evidence that the employer issued or applied the policy in a discriminatory effort to preclude protected concerted activities, the Board deemed it lawful for the employer to bar employees from using its email system for personal purposes.