The Fifth Circuit issued a ruling recently that will impact the employee handbooks or other employment related policies of many employers. In the case Flex Frac Logistics v. National Labor Relations Board, the Fifth Circuit deferred to a National Labor Relations Board opinion finding the company's confidentiality provisions both overly broad and restrictive of the rights of employees. The language in the Flex Frac Logistics policy at issue included a general prohibition on employees from releasing information related to the employer's "financial information... [and] personnel information."
The National Labor Relations Board and later the Fifth Circuit found that company's prohibition could be viewed to unlawfully prohibit non-management employees from discussing their own wages; an action specifically permitted by the National Labor Relations Act of 1935. Please note, this opinion and the National Labor Relations Act cover both unionized and non-unionized workplaces.
While the Fifth Circuit does not cover Arizona employers, this case illustrates the recent flexing of the National Labor Relations Board's muscle in non-unionized workplaces. In recent history, the National Labor Relations Board has issued similar rulings on employee handbooks related to language regularly contained in social networking policies, welcome provisions, at-will statements, and acknowledgements of receipt. Some of these rulings originate directly from Region 28 of the NLRB, covering Arizona, New Mexico, and parts of Nevada.
Simply put, the lesson learned from these recent developments is that the National Labor Relations Board has been extremely active in the area of personnel policies and employee handbooks and intends to remain so. As such, employers are well advised to have handbooks and policies reviewed by counsel to ensure compliance with the various rulings. If you have not had your Handbook reviewed recently, feel free to call or email Farhang & Medcoff. We would be happy to talk you through the recent developments and what they may mean for your workplace.