Good Things to Come for Employers? NLRB Upholds an Employer’s Policy Prohibiting Employees from Disclosing Confidential Customer Information By Ingu Hwang and Devin Dolive
October 2017
In recent years, employers and the courts have struggled to interpret and apply the broad pronouncements coming from the National Labor Relations Board (the “Labor Board”) when analyzing provisions common in employee handbooks. For example, this summer, a court denied enforcement to the Labor Board’s order finding violations of the National Labor Relations Act through an employer’s rules encouraging “a positive work environment” and declaring “arguing or fighting with co-workers” to be “unacceptable.” See T-Mobile USA, Inc. v. NLRB, 865 F.3d 265 (5th Cir. 2017). Another court denied enforcement to the Labor Board’s order finding similar violations where the employer, in furtherance of its “open door” policy, adopted handbook provisions encouraging employees to voice their complaints directly to their “immediate supervisor or to Human Resources.” See Hyundai Am. Shipping Agency, Inc. v. NLRB, 805 F.3d 309 (D.C. Cir. 2015). Recently, however, the Labor Board showed common sense when evaluating an employer’s policy prohibiting disclosure of confidential customer information. See Macy’s Inc., 365 NLRB No. 116 (Aug. 14, 2017). At issue in that case was Macy’s policy prohibiting its employees from disclosing customers’ personal data, including credit card numbers and social security numbers, without written approval from Macy’s top management. The Labor Board’s administrative law judge initially found that Macy’s policy violated the National Labor Relations Act. Specifically, the administrative law judge believed that this Macy’s policy could be reasonably construed as restricting employees’ ability to communicate with customers regarding matters affecting the employees’ employment. Macy’s filed exceptions to (i.e., appealed) the administrative law judge’s decision with the Labor Board. The Labor Board, in a decision reflecting a 2-1 split among the three Board Members considering the case, showed common sense and found merit to Macy’s exceptions. The Labor Board concluded that Macy’s employees would not construe the policy prohibiting the disclosure of customers’ social security numbers and credit card numbers contained within Macy’s confidential records as interfering with employee rights under the National Labor Relations Act. Considering recent Labor Board decisions, this Macy’s decision may cause employers – and especially those whose businesses involve confidential customer data – to breathe a sigh of relief. This decision may indicate more common-sense interpretations of employment handbooks and perhaps even more good things to come for employers in future Labor Board decisions. However, employers should keep in mind that Macy’s was a split decision; the pendulum has not shifted completely. Employers should still be vigilant and continue to review their handbook provisions in light of the Labor Board’s various pronouncements.
To discuss this further, please contact:
Ingu Hwang in Birmingham at
[email protected] or (205) 458-5313 Devin Dolive in Birmingham at
[email protected] or (205) 458-5332 or the Burr & Forman attorney with whom you regularly work. No representation is made that the quality of legal services to be performed is greater than the quality of legal services performed by other lawyers.
