On Feb. 24, 2015, the National Labor Relations Board (NLRB) held that a Washington transportation company’s Confidentiality Agreement violated the National Labor Relations Act (NLRA). The case was titled, Battle’s Transp., Inc., 362 N.L.R.B. No. 17, 2/24/15. While the Administrative Law Judge (ALJ) had previously held the policies were lawful, the NLRB made the controversial decision to overturn that finding. The policy, in the eyes of the NLRB, was sufficiently vague that an employee could, according to the NLRB, interpret it as violating Section 7 of the National Labor Relations Act.

Section 7 applies to unionized and nonunionized employees. All employers, whether union or nonunion, should consider revisiting their confidentiality policies in light of this decision. Section 7 of the NLRA guarantees employees “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection,” as well as the right “to refrain from any or all such activities.” One type of policy forbidden by Section 7 is a policy that prohibits employees from discussing wages amongst themselves. Even where a policy does not explicitly prohibit this type of discussion, a vague policy can be held violative if, in the NLRB’s estimation, employees could reasonably construe it as prohibiting such discussions.