Those non-competes your employees sign probably violate federal labor law. Or do they?

Quit playing with my emotions, Eric.

That National Labor Relations Board has gone and done it again!

Or has it?

In Minteq International, Inc., and Specialty Minerals, Inc. (you can download a copy of the decision here), the Board examined the confidentiality language in a company’s non-competition agreements:

Confidential Information refers to any information not generally known in the relevant trade or industry which was obtained from the Company, or which was learned, discovered, developed, conceived, originated, or prepared by me in the scope of my employment. Such Confidential Information includes, but is not limited to, software, technical, and business information relating to the Company inventions or products, research and development, production processes, manufacturing and engineering processes, machines and equipment, finances, customers, marketing, and production and future business plans and any other information which is identified as confidential by the Company. . . . (emphasis added)

What’s wrong with that? Well, the Board takes the position that any workplace rules that chill employees from talking about working conditions with one another are unlawful.  This is true regardless of whether your workplace is unionized.

So, when the employer propounds a rule that purports to put the kibosh on sharing company information, it may get the NLRB third degree. Indeed, an Administrative Law Judge concluded that an employee would reasonably interpret the language emphasized above as chilling protected activity because the phrase “any other information which is identified as confidential by the Company” is so ambiguous that it could reasonably be read to include wages and benefits.


Here we go….

On appeal, the Board DISAGREED!!!

Uh, yeah!

The phrase containing this prohibition does not stand alone and must be read in context….Here, Section 2 defines “confidential information” as “any proprietary or confidential information or knowhow belonging to the company,” that is “not generally known in the relevant trade or industry,” and which the employee “obtained from the Company . . . in the scope of [his or her] employment.” This definition is followed by examples of confidential information which illustrate its scope and meaning…Considered in this context, we find that employees reading the concluding phrase, “any other information which is identified as confidential by the Company,” would reasonably understand it to refer to the preceding examples of proprietary information and trade secrets, not information related to employees’ wages or working conditions.

You read that right. The Board concluded that your employees are smart enough to understand that, when you delineate examples of confidential information, you’re not trying to chill them from snippy watercooler chat or whining about their crappy salaries. Boo yah!

Score one for the employer! USA! USA!

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