This past week, the D.C. Circuit Court of Appeals issued an important decision addressing two on-the-bubble workplace confidentiality policies – one which made the cut, while the other one made its way over to the legal equivalent of the NIT.  The decision explored the boundaries of workplace directives related to the discussion of salary and employee discipline information and non-disclosure in investigations.

Continue Reading March Vastness: Blanket Policies on Employee Salary and Discipline Disclosures Unlawful, Says D.C. Circuit Court

Written by Jennifer Rubin

Following up on the piece I wrote with Jim Ninivaggi, “Whose LinkedIn Profile is it Anyway,” the information contained in an employee’s LinkedIn contacts were discussed in the context of trade secrets in a recent California Federal District Court case, Cellular Accessories for Less, Inc. v. Trinitas.

Continue Reading Employee’s LinkedIn Contacts Once Again Become Focus of Trade Secrets Claim

Written by Gauri Punjabi

A recent decision from the Massachusetts federal district court serves as a good reminder to Massachusetts employers that courts are unlikely to view the breach of a non-disclosure/confidentiality agreement as justification to impose a non-competition restriction on a former employee where no such express restrictive covenant exists.

Continue Reading Massachusetts Federal Court Refuses to Transform Non-Disclosure Agreement into a Non-Competition Agreement

Check out this insightful post from my colleagues Samantha P. Kingsbury and Karen S. Lovitch over at our sister blog, Health Law and Policy Matters, discussing a recent decision about a relator that allegedly breached of a confidentiality agreement by filing a qui tam case.  These types of cases against relators are becoming more common in the qui tam context.



By David Barmak

Lorene Schaefer, a mediator, arbitrator and workplace investigator, has reported on the One Mediation blog that by a letter of August 3, 2012 the Buffalo, New York office of the EEOC notified an employer that the employer’s written policy warning employees who participate in an investigation not to discuss the matter and providing that employees who do so may be subject to discipline including termination of employment may be a “flagrant violation” of Title VII and itself an adverse employment action. While the full text of the EEOC’s letter has not been published and the facts in the underlying case are not known, it appears that the case involved complaints of sexual harassment from multiple women.

Continue Reading Employers Beware: Is EEOC Joining the NLRB to Require that Employers Not Instruct Employees to Maintain the Confidentiality of an Ongoing Investigation of an Employee Complaint?

By Michael S. Arnold

The National Labor Relations Board continues to expand the scope of the National Labor Relations Act in union and non-union workplaces – this time taking issue with an employer’s policy prohibiting employees from discussing ongoing internal investigations. 

As sensible employers everywhere realize, it is important to maintain confidentiality during the course of an internal investigation.  The Board apparently disagrees, taking the position that a blanket policy of requesting participants in an internal investigation to refrain from discussing the investigation violates the NLRA.  Specifically, in Banner Health System, the Board found that an employer’s desire to protect the integrity of its investigations was not a legitimate business justification sufficient to overcome the employees’ NLRA section 7 rights to engage in concerted activity – that is, generally, to discuss issues related to their compensation, benefits or working conditions. 

Continue Reading NLRB Takes Aim at Policies Designed to Ensure Confidentiality of Internal Investigations

Written by H. Andrew Matzkin and Paula Lyons

Many employers have employees sign confidentiality agreements aimed at prohibiting disclosure of confidential business information to third parties, and it has been widely assumed that such clauses were lawful. That assumption may no longer be accurate, however, as a recent First Circuit decision has held that confidentiality clauses in employment contracts can constitute a per se violation of employees’ protected employee rights under the National Labor Relations Act (NLRA) if the clauses can be read as prohibiting all discussions of wages, hours, and working conditions.  Click here to read the full article.