Yet another potentially “chilling” effect.
Quicken Loans, Inc.’s mortgage bankers are required to sign an employment agreement containing provisions prohibiting them from disclosing non-public information regarding the company’s business or personnel to any person, business or entity. This includes information such as personnel lists, addresses and phone numbers of co-workers. The agreement also includes a non-disparagement provision which prohibits employees from publicly disparaging, criticizing or defaming the company or any of its products, services, policies, directors or officers.
Here Comes the Judge
In a recent decision by NLRB Administrative Law Judge Joel Biblowitz, See Quicken Loans, Inc. , Case No. 28-CA-75857, the Judge ruled that the two above referenced provisions were overly broad (sound familiar??) and unlawfully hindered employees’ rights to engage in protected concerted activity.
In arriving at his decision, the Judge noted that while the line between lawful and unlawful restrictions is “very thin” and somewhat blurred, there was no doubt, in this case, that any employee reading these provisions could “reasonably” construe them as restricting his/her rights to engage in protected concerted activities as provided for in Section 7 of the NLRA.
How Can That Be?
Well, regarding the sharing of proprietary information prohibition, the Judge determined that the provision would require employees to refrain from discussing their wages and benefits with not only their union representatives but co-workers as well. That’s a “No, no” said the Judge. The Judge further determined that despite the fact that employees may, in a somewhat limited fashion, criticize their employer, an employee could reasonably conclude that the non-disparagement provision in this agreement totally curtailed his right to criticize his employer.
“That’s Nice, But No Cigars”
The company’s argument that no employee had ever been disciplined for violating the policy apparently did not carry much weight with the Judge, who went on to recommend that the company be ordered to post a notice and notify all of its mortgage bankers nationwide that the provisions had been rescinded.
What’s In It For You?
You may be tired of hearing it – but given the rate at which these decisions are being delivered, employers need to have carefully drafted employment agreements, policies and procedures. A word to the wise!