Many employers require their employees to sign and abide by the terms of some type of confidentiality agreement, confidentiality clause, or non-disclosure agreement as a condition of employment. Usually, the intent of such an agreement is to protect sensitive information and prevent such information from being discussed outside of the company. But employers should carefully consider the language and wording of confidentiality agreements to make sure they are in compliance with the standards set forth by the National Labor Relations Act (NLRA).
While you might think you are well within your rights to require a confidentiality agreement that prohibits an employee from discussing such things as company “financial information” or “personnel information”, the Fifth Circuit of Appeals (which decides federal appeals for cases originating in Texas) ruled in Flex Frac Logistics v. NLRB that such an agreement is unlawful. The ruling applies even to non-unionized companies like yours.
The Fifth Circuit decided that by prohibiting the employee from discussing company financial information and/or personnel information, the employer was infringing upon the employee’s right to discuss and negotiate the terms of their employment, including salary and hours. The NRLA protects activities by employees that would aid in the formation of unions, including free discussion of the employer’s pay practices.
Therefore, if you are contemplating incorporating some type of required confidentiality agreement or non-disclosure agreement into your company policies and procedures, or if you already have an existing confidentiality policy, the terms and conditions should be carefully reviewed to insure compliance with the NLRA. And keep in mind that the NLRA applies to ALL employers, regardless of whether or not the employer has union employees. Also, make sure you don’t have any other policies (written or generally understood) or employment agreements that prohibit employees from discussing wages.