NLRB Advice Memo

NLRB Releases Favorable Advice Memos

The National Labor Relations Board released new advice memorandums on Friday, July 13. Despite the ominous date, the memos were not scary for employers. NLRB advice memos are essentially guidance for regional directors who have questions about cases before them. One of the memos, pertaining to the Lyft. Co., found that Lyft’s rules regarding limiting the use of its intellectual property and disclosing of confidential information were legal under the board’s new test for evaluating such rules. Another set of NLRB advice memos from the Kumho Tires cases touched on social media rules and issues.

Lyft Co. Case 20-CA-171751

  1. Confidentiality Policy

The confidentiality policy prevents proprietary and confidential information relating to Lyft’s business, including “user information”, from being disclosed to third parties. The NLRB concluded that this policy was lawful because employees would not reasonably interpret it to cover Section 7 activity. The rule is primarily directed at prohibiting the disclosure of “technical, financial, strategic, and other proprietary” information. The NLRB noted that the policy is intended to protect user information and does not prohibit employees from sharing information about working conditions or employee names and contact information.

  1. Intellectual Property Policy

The intellectual property policy prevents the creation of materials using Lyft’s Marks without the company’s permission in writing. The NLRB noted that the rule does not interfere with the exercise of Section 7 rights and even if it did interfere, the potential adverse impact on those protected rights is outweighed by the employer’s justifications of the rule. The memo goes on to say that employers have a significant interest in protecting their trademarks that are often worth millions and failure to police the use of their trademarks can result in significant loss.

Kumho Tires Cases 10-CA-208153 and 10-CA-208414

  1. Social Media

In Kumho Tires Cases 10-CA-208153 and 10-CA-208414, Employee #2 found a filled-out bonus request form on the Team Leader’s desk. Employee #2 then gave it to Employee #1, who posted it in a closed Facebook group. The supervisor then discharged Employee #1, stating that the Facebook post of the bonus request form violated the Employer’s social media policy. The Employer’s social media policy stated, in relevant part:

Maintain the confidentiality of the Company’s trade secrets and private or confidential information. Trade secrets include information regarding the development of systems, processes, products, know-how, and technology. Do not post internal reports, policies, procedures, or other internal business-related confidential communications.

The Board found that the social media rule is facially lawful because it would not reasonably be interpreted as restricting NLRA rights. Although, the Board did find that Employee #1 was engaging in concerted activity concerning wages when they posted the bonus request form to the Facebook group, the Board ultimately found that Employee #1’s conduct was unprotected because he posted to photo of the bonus request form even though they knew Employee #2 had misappropriated the form. Therefore, the discharge of Employee #1 was lawful.

For your reading pleasure, here are full text versions of the NLRB advice memos.