On July 24, 2020, the National Labor Relations Board decision in Motor City Pawn Brokers reminded us of the tricky issues surrounding confidentiality and nondisparagement policies that employers should be considering as they dust off their handbook for revisions in preparation of 2021. Employers do not like it when employees talk bad about them to anybody, including other employees, customers or third parties. Yet, before an employer jumps to discipline or fire an employee for not following or agreeing to a confidentiality or nondisclosure agreement, they should consider how far is too far especially when the National Labor Relations Act looms over protecting employee communications about wages or working conditions.

For the current standard with which employers’ rules will be determined to be lawful or not lawful under the NLRA, employers should recall the 2017 NLRB Boeing decision that overruled Lutheran Heritage Village-Livonia to establish the new standard of balancing the employees’ protected rights under the NLRA and the employer’s legitimate business justifications with the purpose being to determine whether a facially neutral employer policy would interfere with, restrain, or coerce employees in the exercise of their Section 7 rights protected under the National Labor Relations Act. Moving forward the board even established how the analysis leads to the result of an employer rule falling into one of three categories. Category 1 are the lawful rules that when reasonably interpreted do not prohibit or interfere with the exercise of protected employee rights or the potential adverse impact on protected rights is outweighed by business justifications. Category 2 are rules that are going to require more of an analysis and weighing of the employee rights affected or impacted and if outweighed by legitimate business justifications. Category 3 are rules that unlawfully prohibit or limit protected conduct, which impact is not outweighed by business justifications.