Too Much Confidentiatlity…There Is Such A Thing

I’ve written a couple posts on non-profits and the importance of  confidentiality. So when I heard of this case limiting  what can be kept “confidential” I thought it would be interesting to discuss.

The National Labor Relations Board (NLRB) recently held that an agency maintained confidentiality provisions that were too broad. Consequently, when an employee was fired for not adhering to them it constituted as wrongful termination.

In this case, the agency had an employment contract with a provision barring employees from  disclosing the amounts they were being paid to other employees. Then the agency began to have problems paying the employee. When he complained to a client about the problems he was having with his paychecks he was fired.

A court sided with the employee finding that the confidentiality language violated Section 8(a)(1) of the Labor Management Relations Act (LMRA). The courts reasoning was that the provision was so broad it could be interpreted to restrict actions protected under the act, that being the right to discuss and work to try to improve working conditions.

 

Takeaway…..


I haven’t seen many non-profit employers with restrictions similar to that in this case. However, even for those that don’t I could see many organizations being deterred from introducing confidentiality into the culture for fear of facing reprimanded.

A couple things to keep in mind:

  • There are different types of confidentiality. The confidentiality that I usually discuss concerns  acquiring and retaining personal information. Here, this dealt more with an employers attempt to manage labor relations. Each must be treated differently, as they do fall under different laws. As you can see in this case, not only did free speech play a role but employment law does as well. When dealing with donor information there’s a whole host of different laws that will come into play.
  • Regardless of what type of confidentiality you’re dealing with you must, must, must be specific. As tempting as it may be, implementing whole-sale bans in any regard is bound to get you in trouble. Always think about what it is you’re trying to do specifically and articulate that.
  • Just because you don’t want something disclosed or discussed doesn’t mean it will always fall under the ambit of confidentiality. Restrictions or bans on speech will almost always raise the ears of the court. Think about what it is exactly that you’re trying to accomplish and regulate appropriately. Rather than telling employees that they can’t discuss something at all, limit who they may discuss it with, when or where they may discuss it. And always provide an out. For example,  regardless of a prohibition clearly express that employees can and should always approach management. Or provide a third party hot-line that employees may contact.
  • Of course, I think this goes without saying. It always helps to pay your employees. .

If you’d like to read the case yourself it can be found here. The Act involved is provided here.

And just in case you thought non-profits don’t get swept up into cases like this, Employment Law Watch Blog has an article on a New York nonprofit recently busted for this very thing.  If your mind is spinning from all this (and understandably so) the Department of Labor has a website to help non-profit organizations with all of these labor issues.