Flex Frac decision highlights need for employers to reexamine confidentiality policies

In recent years, the National Labor Relations Board has waged a campaign against what it considers to be "overbroad" employer confidentiality policies. In dozens of decisions, the Board and administrative law judges have found unlawful employer work rules that run afoul of the Board's prescription that employer's may not maintain policies that are likely to be "reasonably construed" by employees to prohibit discussion and disclosure of information concerning wages and other terms and conditions of employment. While some employers may have anticipated that the courts would reign in the Board's aggressiveness, the Fifth Circuit's recent decision in Flex Frac Logistics LLC v. NLRB, suggests that this may not be the case. As a result, employers should strongly consider examining their employee confidentiality policies to determine if they are consistent with current Board law.