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NLRA Does Not Protect Employee’s Wrongful Access Of Confidential Data

Under the National Labor Relations Act (NLRA), employees have the right to discuss their wages with colleagues.  The NLRA does not give employees who surreptitiously access wage data the right to discuss that information with colleagues, however.  In an advice memorandum released July 16, the National Labor Relations Board’s Office of the General Counsel provides a reminder that employees who cross the line by improperly obtaining wage information may be discharged if the employer reasonably believes that the employee breached confidentiality requirements.  Centura, 27-CA-234214 (6/24/19).

The situation addressed in the advice memo involved a human resources employee in the recruitment division.  The employee had access to the employer’s wage information, which she knew was confidential.  In May 2018, the employee voiced an interest in moving to a new, higher paying position.  After the employee met with an internal recruiter, she applied for two open positions.  She discussed the second position with another employee who applied for the same opening.  Sometime later, Centura received an anonymous tip on its “Integrity Hotline” stating that the employee had disclosed the salaries of other employees during a conversation about the jobs she was applying for.  The employee allegedly disclosed the amount another employee in the position was making and that she learned that information by virtue of her role in HR.

When questioned during Centura’s investigation, the employee consistently denied that she disclosed confidential information.  Other employees reported that the employee had conveyed wage information of colleagues.  Upon conclusion of the investigation, Centura terminated the employee for divulging confidential information.

The Office of General Counsel concluded that Centura’s conduct did not violate Section 8(a)(1) because the Company reasonably believed that the employee “inappropriately divulged confidential information obtained through [her] human resources position.”  The employee was allowed to use information she learned in the normal course of her job, but she could not go beyond her normal work activity to obtain confidential information.  Here, the employee’s normal job duties would not have provided her the information the employer thought she had disclosed.  As explained in the memorandum, Centura legitimately believed that the employee “misappropriated confidential wage records, which [she] had access to by virtue of [her] job, but which were unrelated to [her] normal work activity.”  Even if the employer was mistaken, its legitimate and reasonable belief was sufficient to avoid violation of the Act.

 

 

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