Recently the NLRB’s General Counsel issued two memos which greatly improve the positions the Board had previously taken on the legality of At Will Disclaimers and requiring the confidentiality of investigations.
In the memo addressing At Will Disclaimers the Board determined that the following language is lawful: ” Only the Company President is authorized to modify the Company’s at-will employment policy or enter into any agreement contrary to this policy. Any such modification must be in writing and signed by the employee and the President.” The Board reasoned that the language is lawful because it provides that the at will relationship can be modified in the future.
In the memo addressing the confidentiality of investigations the Board provided us with the following language which it found to be lawful: ” [Employer] may decide in some circumstances that in order to achieve these objectives, we must maintain the investigation and our role in it in strict confidence. If [Employer] reasonably imposes such a requirement and we do not maintain such confidentiality, we may be subject to disciplinary action up to and including immediate termination.”
Based on these memos employers should do the following:
1. Make sure that your At Will Disclaimer provides for the ability to modify the relationship. Limiting the ability to modify to the President and requiring that it be in writing is permissible.
2. When you impose a confidentiality requirement on an investigation have a specific, reasonable reason for doing so. Protecting witnesses from intimidation or retaliation, preserving evidence and preventing witnesses from collaborating are certainly reasonable reasons for preserving confidentiality.
Here’s hoping the NLRB continues to be reasonable!
Most employers have a confidentiality policy that is distributed to all employees. Most of those policies broadly define confidential information. But if your policy defines confidential information to include employee wages and salaries is it legal?
A confidentiality policy that prohibits employees from discussing wages, salaries or other terms and conditions of employment is illegal because it violates the National Labor Relations Act (NLRA). This fact was reinforced in a recent ruling against Aerotek Inc. after two of its recruiters in Nebraska told several employees they were not allowed to disucss their wages as a condition of employment.
Employers need to make sure that their confidentiality policy gives specific examples of what constitutes confidential information, such as business plans and profit margins, and does not prohibit employees from discussing their wages, salaries, working conditions or other terms and conditions of employment.