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Secrecy and non-discrimination clauses in contracts of work not prohibited by the NLRA.

A recent case about Quicken Loans, Inc. In Case No 28-CA-75857, JD(NY)-03-13 (8 January 2013), an NLRB Administrative Judge ("ALJ") found that employers' current practices of incorporating secrecy and non-discrimination clauses into contracts of work infringed the NLRA. ALJ found that these contractual terms have a deterrent effect on workers' right to talk about their working condition with staff and others.

At Quicken Loans, Inc. Soon after her retirement, Quicken filed a lawsuit against the staff member for breach of the "no contact/no raiding und the non-compete provisions" of the company's Mortgage Banker Employment Agreement (MBEA). Proprietary/Secret Information" in the broadest sense of the term defines sensitive information as "non-public information related to or concerning the businesses, people, clients, operation or matters of the Company" and includes "personal information of employees, directors, executives and executives; manuals, employment records, employment information such as home numbers, mobile telephone numbers, postal and e-mail address and credit information for directors and executives of the Enterprise.

" KBEA forbid its staff to "disclose this information to any individual, company or corporation". "In turn, the co-worker lodged a grievance with the NLRB alleging that the terms of the agreement had infringed her legal prerogatives. The ALJ concluded by analysing the secrecy and non-discrimination rules under Lafayette Park Hotel, 326 NLRB 824, 828 (1988), and Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004), where the Board found, inter alia, that'workers would interpret adequately the rules prohibiting the operation of Section 7' if the policies did not expressly limit the operation of Section 7'.

Compliance with these limitations would not allow workers to talk to others, their colleagues or trade unions, the salaries and other services they are receiving, the name, salaries, services, addresses or phone numbers of other workers. After the ALJ had declared the confidentiality rule invalid, it turned to the MBEA's "non-disparagement" rule.

According to the "non-disparagement" rule, staff may not "publicly criticise, make a fool of, discredit or slander the company... through a declaration in writing or orally...". Recognising that Section 7 gives a worker the right to criticise his employer, whether among staff or "in public", the ALJ found that a worker "could reasonably interpret the non-distortion clauses to restrict his right to legitimate concert activities" and found that the non-distortion also contravened Section 7 of the NLRA.

When formulating a wording intended to restrict an employee's right to discussion or disclosure of information to workers or other target groups, the employer is advised to write the wording in such a way that it defines the information to be safeguarded accurately and precisely. Without very clear commercial reasons, an employer should refrain from restricting an employee's right to argue about pay or benefit or other working arrangements.

In addition, the employers should insert a liability exclusion clearly indicating that the directive or regulation is not designed to prevent or forbid concertation under Section 7 of the NLRA. Non-discrimination directives should be restricted to vilifying remarks about an individual employee and an individual employee or assaults that are strictly individual and disproportionate to the employer's guidelines on pay, hourly rates and working practices.

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