Sometimes the school-teacher refrains “everyone be quiet” or “back to your corners” can feel like an excellent tool for managing employees. Be aware of the possible pitfalls, however, when you ask them to avoid certain topics of conversation or behave in a particular way.
Nonwork-Related Chatter or Just Being a Jerk
As employers, we already ask people to avoid certain kinds of language or conversations at work. For example, we don’t allow employees to discuss their sexual activities, use racial epithets, or make discriminatory statements about people and their physical or mental abilities.
When something doesn’t clearly fall within the Equal Employment Opportunity Commission’s (EEOC) guidelines, however, it can be a bit more difficult to determine what an employee may or may not talk about in the workplace. That has been particularly true during intense political seasons when conversations about both local and national races can step well over the line of basic politeness.
In general, if employees engage in disruptive debates about something innocuous like their preferred TV programs or opinions on the designated hitter rule in major league baseball, you can ask them to cease the conversations. While it’s difficult to police personal discussions, you have the right to ask people to stop arguing about certain topics.
Some workplaces have banned discussions about football or baseball during hard-fought athletic seasons, and plenty of employees have been disciplined for inappropriate political commentary that edged over into national origin or sex discrimination. Employees who don’t comply can be disciplined for insubordination for failing to abide by the workplace request and interfering with other people’s work.
Trade Secrets and Confidential Employee Data
Most workplaces have significant amounts of confidential data—not only company trade secrets but also employee information such as Social Security numbers, credit card numbers, and medical reports. You have good reason to tell your employees to avoid talking about the information.
You should clearly define what is a trade secret and protect the information with confidentiality agreements as well as copyrights or patents when applicable. You can enter into and enforce the agreements to protect your critical information.
Other data that is less likely to be subject to a secondary agreement may include:
- Data that’s patient-related and covered by the Health Insurance Portability and Accountability Act (HIPAA);
- Credit card or other financial information; or
- Employee information such as Social Security numbers.
You can protect the data with a policy stating the information is confidential and not subject to release without appropriate authority and permission. Enforcement mechanisms could include internal discipline as well as potential litigation should there be a data breach. In some instances, the matter may be subject to reporting under Iowa’s data rules, including Iowa Code 715C for example, HIPAA, or similar governing statutes.
Media Requests
Many employers want to implement policies preventing employees from speaking to the media. The National Labor Relations Board (NLRB) has generally indicated, however, that you can’t prohibit them from speaking to the media, particularly if they’re talking about “conditions of employment” such as safety concerns, wages, or benefits.
If there is a media inquiry, however, you can prevent employees from making statements on the company’s behalf or representing themselves as your spokesperson. Your policies should provide a clear path for employees to direct any media inquiries to the appropriate individual.
Conditions of Work
As mentioned above, the EEOC and the NLRB have consistently indicated you cannot prohibit employees from discussing the conditions of work, which could include:
- Wage rates or salary information;
- Whether a male is paid more than a female;
- Various benefit accruals;
- How people are disciplined and whether the penalties are consistent;
- Work hours and overtime schedules; and
- A wide array of other matters.
The NLRB has ruled that prohibitions against employees discussing work conditions affects their Section 7 rights under the National Labor Relations Act (NLRA). The EEOC views certain kinds of prohibitions as impeding civil rights; for example, they could prevent someone who is older from discovering that younger employees are paid more.
Investigations
Investigations are a regular component of the HR practice. Every workplace has a periodic investigation, whether it relates to a workers’ compensation matter, an Occupational Safety and Health Act (OSH Act) concern, or an employment discrimination claim.
For several years, the NLRB’s position was that policies requiring employees to keep investigations confidential impeded their Section 7 rights. The Board’s December 2019 decision in Apogee Retail, LLC reversed that position, stating that policies requiring confidentiality on the part of witnesses and others during an investigation are “presumptively lawful.”
Note the ruling relates exclusively to information during a pending investigation and doesn’t address employers that prohibit employees from discussing the ultimate outcome of probes or disciplinary actions.
In the Apogee case, company rules weren’t limited to the period of actual investigation, so the NLRB sent the case back to the administrative law judge for further consideration. Other pending cases could be affected, including concerns about potential retaliation by coworkers after an investigation is completed and how the Board’s reversal could affect future reports of problems. You’re encouraged to keep an eye on the issue and consult with an attorney to ensure your policies are compliant.
Bottom Line: Confidentiality Isn’t One-Size-Fits-All
Rules and policies on confidentiality should be carefully tailored to your workplace. Figure out whether you have trade secrets or other similar information requiring separate and specific agreements. Also, review how you approach and deal with political conversations, office gossip, media requests, and watercooler chitchat without violating your employees’ rights.
Jo Ellen Whitney is a senior shareholder with the Davis Brown Law Firm in Des Moines, Iowa. You can reach her at joellenwhitney@davisbrownlaw.com.