Burr & Forman

10.13.2017   |   Articles / Publications

Burr Alert: Good Things to Come for Employees? NLRB Upholds an Employer’s Policy Prohibiting Employees from Disclosing Confidential Customer Information

In recent years, employers and the courts have struggled to interpret and apply the broad pronouncements coming from the National Labor Relations Board (the “Labor Board”) when analyzing provisions common in employee handbooks. For example, this summer, a court denied enforcement to the Labor Board’s order finding violations of the National Labor Relations Act through an employer’s rules encouraging “a positive work environment” and declaring “arguing or fighting with co-workers” to be “unacceptable.” See T-Mobile USA, Inc. v. NLRB, 865 F.3d 265 (5th Cir. 2017). Another court denied enforcement to the Labor Board’s order finding similar violations where the employer, in furtherance of its “open door” policy, adopted handbook provisions encouraging employees to voice their complaints directly to their “immediate supervisor or to Human Resources.” See Hyundai Am. Shipping Agency, Inc. v. NLRB, 805 F.3d 309 (D.C. Cir. 2015).

Recently, however, the Labor Board showed common sense when evaluating an employer’s policy prohibiting disclosure of confidential customer information. See Macy’s Inc., 365 NLRB No. 116 (Aug. 14, 2017). At issue in that case was Macy’s policy prohibiting its employees from disclosing customers’ personal data, including credit card numbers and social security numbers, without written approval from Macy’s top management.

The Labor Board’s administrative law judge initially found that Macy’s policy violated the National Labor Relations Act. Specifically, the administrative law judge believed that this Macy’s policy could be reasonably construed as restricting employees’ ability to communicate with customers regarding matters affecting the employees’ employment. Macy’s filed exceptions to (i.e., appealed) the administrative law judge’s decision with the Labor Board. The Labor Board, in a decision reflecting a 2-1 split among the three Board Members considering the case, showed common sense and found merit to Macy’s exceptions.

Download the full article, “Burr Alert: Good Things to Come for Employees? NLRB Upholds an Employer’s Policy Prohibiting Employees from Disclosing Confidential Customer Information” written by Ingu Hwang and Devin Dolive.

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