NLRB guidance says employee handbooks, salary info aren’t confidential. And company e-mail use is okay
Every so often, the National Labor Relations Board issues guidance on workplace issues. The guidance is not meant to be black-letter law, but it tells local boards how they should handle various complaints. The latest crop is about workplace confidentiality, for want of a more precise term. Specifically, are employee handbooks and salary information privileged? And on another hot-button issue, is it okay for employees to use the company e-mail system for personal communication?
Spoiler alert: No, no, and yes.
Akerman has put out a client alert on the guidance, and it’s well-written and concise, adapted to readers from general counsel to HR directors and IT managers. Specifically, a company policy had specifically designated its employee handbook confidential, and forbade employees from telling people outside the company about the handbook’s contents. The Board said such a ban precludes employees from discussing such important issues as pay, benefits and working conditions with, for example, unions and other third parties.
The NLRB said that the ban on discussing pay was also unlawful because employees might think that it barred them from talking to each other about pay and their benefits–or with others outside the company, which is a fundamental right under the National Labor Relations Act. Surprising that a Trump-era board might say this, but, according to the Ackerman author, Amy Moore Gayland, that’s what it held.
Another big one was a rule banning personal use of the corporate email system, except for occasional or incident use. No one among us, I’m sure, has never used company email for a personal note, even if it’s quasi-business, such as meeting a business associate who’s become a personal friend and who works in another company for lunch. The Board also held this rule to be unlawful. Under current Board policy, companies that require employees to use the email system for work must allow employees to use it during downtime, such as weekends, evenings and lunch breaks. A company has to show special circumstances for a total personal use ban to pass muster for the Board.