Over the past several years, seemingly, we've seen the NLRB takea more active interest in employee handbooks.

We've certainly seen it with respect to social media policies;especially, where these policies purport to limit the rights ofemployees to discuss their employment with one another. This isbecause Section 7 of the National Labor RelationsAct allows employees to discuss their terms and conditionsof employment together.

And you don't need to have a union either. The act applies inmost every private-sector workplace.

So, whether it's employees gabbing about how their workplacesucks, or how they are being underpaid, you can't forbid that.

This holds true even if you have a workplace policy whichcategorizes wages as “confidential.” The National Labor RelationsBoard won't have any of that.

And, most recently, the Fifth Circuit Court of Appealsreaffirmed it in this case, by underscoring that “a workplacerule that forbids the discussion of confidential wage informationbetween employees patently violates section 8(a)(1) [of theAct].”

Indeed, even a workplace rule that doesn't expressly lump wagesinto the definition of “confidential information” can still beoverbroad and, therefore, unlawful.

The company's “confidentiality” policy highlighted in the FifthCircuit opinion didn't mention wages explicitly. Instead, itprecluded discussion of company “financial information, includingcosts.” Both the NLRB and the Fifth Circuit concluded that anemployee could reasonably construe this language to precludediscussion of wages.

Therefore, when drafting your confidentiality policy language,consider carving out wages and benefits specifically, or morenarrowly defining your confidential information so that areasonable person wouldn't read the policy to preclude discussionof their paycheck.