Snell & Wilmer

Employers frequently ask if they can maintain rules requiring employees to keep the contents of their employment handbooks confidential.

In a recent memorandum, the General Counsel (GC) (Division of Advice) of the National Labor Relations Board (NLRB) concludes that such rules are unlawful, as they interfere with the employees’ rights to discuss handbook policies regarding terms and conditions of employment with unions or other third parties.

The employees’ protected right to discuss handbook rules and policies dealing with terms and conditions of employment with third parties outweighs the employer’s business justification that the confidentiality restriction was necessary in order to prevent the policies in the handbook from falling into the hands of competitors.

In the memorandum, the GC notes that to the extent that the handbook contains confidential or proprietary information, the employer could tailor a rule to protect such information without interfering with the employees’ protected rights to discuss terms and conditions of employment with third parties.