Cintas Corp. learned the hard way about limits of
confidentiality rules
by
Jonathan W. Yarbrough,
Columnist
published April 3, 2007 12:15 am
Many employers have policies prohibiting their
employees from discussing information related to their wages and other
terms and conditions of employment.
Employers don’t want their employees comparing how
much each other is paid. These policies can result in legal challenges
for employers. They must make sure that their policies are written in
a manner that the employees cannot reasonably construe such policies
to violate their rights. Cintas Corp., a uniform supply company, now
knows this all too well, and as a result of a recent court decision,
it must revise the confidentiality provision of its employee handbook
to comply with the law.
Not unlike many companies throughout the country,
Cintas distributes an employee handbook to all of its employees (which
Cintas refers to as “partners”).
Included in the handbook is the following
confidentiality provision: “We honor confidentiality. We recognize and
protect the confidentiality of any information concerning the company,
its business plans, its partners, new business efforts, customers,
accounting and financial matters.” The handbook also warns its
employees that they may be disciplined for violating the
confidentiality provision.
Upon learning of this provision, the union
representing many of Cintas’ employees filed a charge with the
National Labor Relations Board claiming that Cintas’ handbook
provisions violated the National Labor Relations Act by interfering
with the employees’ rights to discuss the terms and conditions of
their employment with others. The NLRB agreed with the union. Cintas
appealed the NLRB’s decision but lost again when the D.C. Court of
Appeals affirmed the union’s position.
The NLRA was enacted to encourage healthy
relationships between private sector workers and their employers.
Specifically, Section 7 of the act protects workers who wish to form,
join or support unions, who are already represented by unions, or who
join together as a group without a union seeking to modify their
hours, wages, working conditions, or terms and conditions of
employment. (See 29 U.S.C. § 157.) Section 8 of the act prohibits
employers from interfering with, restraining or coercing employees in
the exercise of those rights. (See 29 U.S.C. § 158(a)(1).)
Upon reviewing the Cintas employee handbook, the
court focused on the language protecting the confidentiality of “any
information concerning … its partners ...” Cintas argued that the
language did not specifically prohibit its employees from discussing
their wages, working conditions, or terms and conditions of their
employment. The court was not persuaded. In making its decision, the
court relied on a hospital case where it invalidated a similar policy
prohibiting the sharing of “information concerning patients,
associates [i.e., employees] or hospital operations.” (See Brockton
Hosp. v. NLRB, 294 F.3d 100, 106 (D.C. Cir. 2002).) The hospital’s
policy was less restrictive compared with Cintas’ policy, which
prohibits sharing any information concerning its employees.
The court also dismissed Cintas’ arguments that the
employees never interpreted the language to prohibit such Section 7
activity or that Cintas never applied the policy to ban such
communication. The court concluded that the only relevant issue was
whether Cintas’ employees would reasonably construe the
confidentiality rule to restrict the discussions. The court held that
such a construction of the policy was reasonable and upheld the NLRB’s
decision.
This is the opinion of Jonathan W. Yarbrough. He is
a member of the law firm of Constangy, Brooks & Smith LLC, which is
dedicated to representing management exclusively in all aspects of the
employment relationship. Contact Yarbrough at 277-5137 or
jyarbrough@constangy.com.
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