Case Against Google Implicates Employer Confidentiality Policies

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By Hassan A. Kanu

A National Labor Relations Board case against Google raises the prospect that tech firms and many other employers could be forced to change their policies to allow workers more freedom in discussing working conditions with each other or publicly.

The board approved a Google worker’s charge that the tech giant surveilled its employees’ online communications and threatened them with legal action or termination for discussing certain aspects of their jobs, according to documents filed with the NLRB.

“Attorneys who represent employers” tend to draft “very broad policies to protect the important concerns employers have about their information, because information is money,” Kelly Davis, a management-side partner in Quarles & Brady’s employment practice, told Bloomberg BNA May 22. The principle is especially strong in the information-technology industry.

But the NLRB has become concerned about this practice and overly broad confidentiality and communications policies, particularly in this “Facebook-firing era,” Davis said, referring to workers terminated based on comments posted online.

“The reality is that in today’s workplace, oftentimes the only way employees can communicate across broad distances or because they’re working from home is via electronic media,” Jody Calemine, general counsel for the Communications Workers of America, told Bloomberg BNA May 22. “Whether email or Facebook, today’s ‘cafeteria’ is largely online for many workers, and overly broad policies can stifle employees’ right to engage in concerted activity.”

The worker who filed the complaint remains anonymous, per board practice. Attorneys for both parties couldn’t be reached for comment.

Confidentiality Policies Under Microscope

Generally speaking, federal labor law bars employers from interfering with workers’ acting collectively for “mutual aid or protection,” which could mean starting a union or organizing a group to address pay differentials, for example.

NLRB Regional Director Valerie Hardy-Mahoney’s action on behalf of the Google worker is a significant indication that the agency believes there may be merit to the allegations. The board is seeking rescission of significant portions of Google’s employment policies on confidentiality, internal and external communications, and even some of the company’s rules about civility.

The impetus for the board pursuing this sort of enforcement was employers’ reactions to worker online postings about them, Davis said. “Companies felt that lots of use of social media portrayed them negatively, and they wanted to control that so they drafted some fairly broad policies that the NLRB took issue with,” Davis said.

“A lot of employers are tying themselves into knots because they don’t want to come out and say ‘you have the absolute right to communicate about conditions with your co-workers and to organize,’” Calemine said. “So on one hand, they want to avoid letting workers in on that big secret, and on the other hand, they want these very broad confidentiality policies that don’t make clear what employees can talk about—that’s the crux of the problem.”

The board’s central allegation is that the policies are written so broadly that Google can punish employees for some legally protected activity, or at least create an impression that workers can’t take actions they actually have a legal right to. The case “certainly implicates a lot of employers,” unionized or not, Davis said.

Employers Have Less Protection

“A lack of confidentiality could actually destroy many businesses,” Davis said. “In order for employers to have protection, some of the policies need to be written broadly.”

But the board “is sort of whittling away at those protections by whittling away at what is permissible,” she said.

Calemine had a different take. “I understand the need to keep proprietary information private, but that’s not the information the NLRB is focused on,” he said. “It’s about information related to working conditions, like pay, that workers have a right to talk about.”

A “lot of confidentiality provisions do tend to have language that employees could construe as meaning that they’re not permitted to talk about general terms and conditions” of their employment, Davis noted.

It would be lawful to have a rule preventing an HR employee who knows all employee salaries from disclosing that information, for example, she said. “But a regular employee who wants to talk with his or her co-workers to find out if they’re being paid fairly, for instance, may read a policy with broad language as saying he isn’t allowed to do that, and clearly they are,” Davis said. Having a policy which restricts or coerces an employee in the exercise of his or her rights in that way violates labor laws.

General Counsel’s Report Provides Useful Guidance

NLRB General Counsel Richard Griffin issued a report in March 2015 that detailed the agency’s interpretation of a range of typical handbook policies and their lawfulness.

For example, workplace rules that ban discussion of “all non-public information” or disclosure of information that “could adversely affect” the employers’ "interests, image, and reputation” are considered unlawful.

In the first instance, “employees would reasonably” understand the rule to mean “such non-public information as employee wages, benefits, and other terms and conditions of employment,” Griffin wrote. The second rule “would reasonably lead employees to believe” they can’t disclose bad working conditions, the report said.

Both rules are considered unlawful because employees have a right to protest their pay and working conditions, as well as to share information in support of those complaints, according to the NLRB.

Broad requirements for employees to be “respectful of others and the company” or to refrain from “defamatory, libelous” comments about the company are also unlawful because employees could construe such rules as banning protected criticism of management.

Conversely, confidentiality rules that don’t reference employee information or terms and conditions, and that define “confidential” in a specific manner, are lawful. A rule against sharing “confidential financial data, or other non-public proprietary company information,” for example, would be lawful.

Notably, a number of Google policies challenged in the case seem to parallel examples of rules in the report that the NLRB has found unlawful, according to exhibits filed with the NLRB. Although the case hasn’t yet been litigated, this is a strong indicator that the tech giant could have to rewrite its handbook and workplace policies.

The case should prompt employers to review and update policies based on the agency’s guidance, Davis said.

“Employers should review and consider what it is they’re trying to protect, as opposed to just having policies that sounds like the one everyone has—what is the purpose and how do you protect those interests?” she said. “Perhaps they don’t need to be changed—employers are always weighing risks and there isn’t a best one-size-fits-all approach,” but “perhaps it could be done in a different way” to further minimize the risk of legal liability.

The NLRB is likely to undergo a political shift once President Donald Trump fills the two open seats. “Certainly whenever the board’s composition changes, there’s the potential of a different position than we’re currently faced with,” Davis said.

To contact the reporter on this story: Hassan A. Kanu in Washington at hkanu@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Christopher Opfer at copfer@bna.com

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