Another decision has been issued by a National Labor Relations Board ("NLRB" or "Board") administrative law judge ("ALJ") striking down a non-union employer's confidentiality and proprietary information and non-disparagement provisions. While there is nothing new about the Board extending its reach into the world of non-unionized workplaces, this case demonstrates that the Board's Acting General Counsel ("AGC") continues to expand his view, with the Board's continuing agreement, as to what types of traditionally lawful and routine policies, practices, and agreements "reasonable employees" would believe interfere with their exercise of their right to engage in concerted action with respect to the terms and conditions of their employment. This decision, Quicken Loans, Inc., Case No. 28-CA-75857 (Jan. 8, 2013), represents yet another expansion of the Board's view as to the types of provisions that the NLRB is likely to find overbroad and unlawful when it comes to confidentiality, the protection of proprietary information, and the protection of a company's business and reputation though the use and enforcement of non-disparagement provisions.

In recent years, the Board and its General Counsel have made it clear that, despite whether a workplace is unionized or non-unionized, the NLRB is prepared to review employers' policies and procedures to ensure that they do not contain any provisions that could impinge or hinder employees' exercise of their rights under Section 7 of the National Labor Relations Act ("Act"). These cases are being brought before the Board by the AGC, who investigates unfair labor practices and decides which ones he believes have merit and should be brought to trial before an ALJ and, ultimately, to the Board and the federal courts for enforcement. What is new is that the Board is not simply looking at provisions in handbooks or other policies; it is also reviewing employment agreements of highly compensated individuals.