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Your Employee Matters


By September 1, 2011No Comments

Confidentiality Provision in Employment Agreements. In NLRB v. Northeastern Land Services, a non-union temporary staffing agency terminated an employee in violation of the confidentiality provision in his employment agreement after he complained to a client of his employer about the amount of pay he was receiving for the use of his personal computer for work.

The Court of Appeals for the First Circuit upheld the NLRB’s decision that the confidentiality provision, which prohibited the employee from discussing the terms of his employment, as well as his compensation with “other parties,” was overly broad and a per se violation of Section 8(a)(1) of the NLRA. Section 8(a) (1), which bars employers from interfering with employees’ right to discuss the terms and conditions of their employment with others. The NLRB had found that employees could reasonably understand this provision as prohibiting from discussing their compensation with union representatives.

The First Circuit held that the NLRB did not have to consider the employer’s justification for enforcing the confidentiality provision, which the employer stated was to prevent employees from disclosing its labor costs — one of the key components of its bid to clients.

The court held that when a discipline is imposed pursuant to an overly broad rule, this discipline is unlawful, regardless of whether the conduct could have been prohibited for lawful reasons.

If the employer had not relied on the confidentiality provision, but instead on the employee’s disruptive conduct, the employer probably would have been within its right to terminate him.

However, by relying on the overly broad provision, the employer lost any defense against the termination.