Once again, an administrative law judge has ruled that handbook provisions unlawfully restrict employees’ use of information regarding co-workers and the employer’s customers, the use of the company logo, and providing notice to the company’s HR department prior to providing information for a government investigation.
Here is the text of those policies. You decide whether they are objectionable!
“Confidential Information about our Company, its business, associates, customers and business partners should be protected…What is confidential information? It could be…information about employees….Be shared only with those who need to see it for Company business purposes.”
“The Company has certain personal data of its present and former associates, customers and vendors. It…is committed to handling this data responsibly and using it only as authorized for legitimate business purposes…information such as names, home and office contact information…and other similar data.”
“Any information that is not generally available to the public that relates to the Company or the Company’s customers, employees, vendors, contractors, service providers, Systems, etc., that you receive or to which you are given access during your employment or while you are performing services for the Company is classified as ‘confidential’ or ‘internal use only’. Company respects the privacy of this data where it includes personally-identifiable information…Personal Data includes names, home and office contact information, social security numbers, driver’s license numbers, account numbers and other similar data.”
The Company? Macy’s! The judge determined that the limitations on release of Personal Data “obviously” restricts employees in the exercise of their rights under the National Labor Relations Act to discuss the terms and conditions of employment with fellow employees and the right to notify a union of other employees who might be interested in participating in union activities. In fact, he made a fact finding that the emphasis placed on confidentiality in the handbook would lead to the conclusion that the employer intended to violate workers’ rights! As to a prohibition on the use of the logo, this, too, would limit employees or a union to use it in their publicity. Similarly, the judge found that a requirement that employees notify the employer of any governmental investigation violated the NLRA.
What’s more? As in all handbooks I wrote, the Macy’s manual included a clause stating that nothing contained in the policies was intended to prohibited employees from exercising their rights to collective action, discussion of wages and hours or other terms of employment. NOT GOOD ENOUGH, APPARENTLY! He mandated that Macy’s not only rescind these policies but also notify every employee that it had done so.
This ruling will be reviewed by the National Labor Relations Board. I think it is overbroad and extremely problematic. If a worker with access to Personal Data accesses it for non-Macy’s purposes, such as to send announcements for her daughter’s Girl Scout cookies or to stalk someone with whom she is enamored, all she has to do to avoid discipline is to claim that it was for purposes of collective action. The judge has created a carte blanche situation with no regard whatsoever to its consequences outside the world of concerted action. The employer’s clear motivation, to protect Personal Data, which it is required to do under HITECH, a federal law, is paid no heed.
In employment law, workplace rules and dynamics must be taken as a holistic, integrated system and not parsed for narrow purposes. Unfortunately, that basic tenet has been obscured by a highly restrictive interpretation by one federal agency.