Human Resource & Labor News
www.agc.orgJune 5, 2014 / Issue No. 3-14
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On the Inside
Employee Benefits
ACA Regulatory Updates Prompt New AGC Webinar June 24
New COBRA Notices Add Affordable Care Act Info
Workforce Development
Strategies for Recruiting Craft Workers to be Addressed in Free June 16 Web Meeting
Federal Contracting
Hiring Benchmark Now 7.2 Percent for OFCCP’s New VEVRAA Regulations
OFCCP Provides 503 Self-ID Form in Spanish, Word Formats
Federal Contractors Face New Compensation Disclosure Requirements
AGC Comments on Proposal to Change VETS-100 and VETS-100A Forms
Labor Law
Confidentiality Policy Barring Discussion of Cost and Personnel Information Violates NLRA
OSHA to Refer Stale Whistleblower Claims to NLRB
Employment Law
Construction Company to Pay DOL $600,000 for Misclassified Workers Provided By Labor Contractor
AGC Webinar Discusses on Legalized Marijuana in Construction
Labor & HR Education
Registration Open for Construction HR & Training Professionals Conference
Hot Topics in Construction Labor and Employment Law Covered at AGC Labor and Employment Law Council’s Annual Symposium
Labor Law
Confidentiality Policy Barring Discussion of Cost and Personnel Information Violates NLRA

The U.S. Court of Appeals for the Fifth Circuit (LA, MS, TX) has upheld a National Labor Relations Board (“NLRB”) finding that a nonunion trucking company’s confidentiality policy violates the National Labor Relations Act (“NLRA”).

The company required all of its employees to sign a confidentiality policy that prohibited the sharing, removal, and copying of “confidential information” without prior management approval. The policy defined “confidential information” with a long list of items including information related to “our financial information, including costs, prices” and “personnel information and documents.” The Board found that the policy was unlawful because employees could reasonably interpret it to prohibit discussing their salaries and wages with people outside the company, which is a right protected by the NLRA. The court agreed.

The NLRB and court noted that use of the words “financial information, including costs” necessarily included wages and that the policy failed to contain any indication that personnel cost information, like wages, was excluded. Furthermore, by specifically referencing “personnel information,” the company implicitly included wage information in the list of confidential information.

The court found unpersuasive company evidence that its employees did not in fact interpret the policy as restricting their rights to discuss wages. What matters is whether employees “would reasonably construe” the disputed language as restricting the exercise of their rights, said the court, not whether employees actually have construed the rule that way. Likewise, whether the rule is likely to have a chilling effect is determinative, not whether the employer has enforced the rule to restrict the exercise of employee rights.

The decision does not render all confidentiality policies unlawful. The court acknowledged that the company here was free to remove the unlawful provisions of its policy and redraft to maintain confidentiality of “employee-specific information like social security numbers, medical records, background criminal checks, drug tests, and other similar information.” AGC members with confidentiality policies covering nonexempt employees should review their policies in light of the decision and consult with their labor counsel as needed.

Flex Frac Logistics, LLC v. NLRB, Case No. 12-60752 (5th Cir., 3/24/14).

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