It seems that every week, the National Labor Relations Board releases a new decision calling into question the legality of common employment policies maintained by non-unionized employers. This time, in a case brought against Flex Frac Logistics LLC, the Board concluded that a policy prohibiting unauthorized disclosure of personnel information and documents to persons outside of the organization violates employees' right to concerted activity.

The employer contended that this policy was necessary to protect the privacy of its employees, and to prohibit potential disclosure of valuable and confidential information regarding its employees and employment practices to competitors. The NLRB said that the effect of the policy would be to bar employees from discussing terms and conditions of employment with union organizers. The rule was ambiguous and overbroad, and therefore violated Section 7 of the National Labor Relations Act.

This string of cases does not require employers to abandon these longstanding policies. However, employee handbooks and stand-alone policies should contain explanatory language indicating that their terms will not be applied to employee concerted activity or their right to collectively bargain. With appropriate disclaimers in place, social networking, at-will employment, confidentiality and non-disparagement policies can protect legitimate business interests without running afoul of federal labor laws.