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Employee Communications: Federal

Employee Communications requirements by state

Authors: Phillip B. Russell, Ogletree Deakins and Deborah S. Hildebrand

Summary

  • Effective employee communication provides the foundation for positive and cooperative working relationships. See Effective Workplace Communication.
  • Employers should implement a disciplined, planned approach to employee communications, and avoid ad hoc solutions. See Implementing Effective, Coordinated Communication Techniques.
  • Communications training involves disseminating the corporate communications plan, communicating an employer's training options and assisting employees to develop better communication skills. See Communications and Training.
  • Developing and communicating policies and procedures that guide employee behavior allows employees to understand their role in the organization and establishes an employer's expectations. Employee rights must also be communicated through workplace postings. See Communicating Employer Expectations and Work Rules.
  • Exit interviews offer an excellent opportunity for employers to gather information from departing employees. Exit interviews are also valuable in enforcing noncompete agreements. See Exit Interviews: Best Practices; Noncompete Agreements.
  • Employers should safeguard sensitive information, such as documentation regarding performance appraisals and internal investigations. Employers should avoid potential invasion of privacy claims as well as claims related to reference checks. See Communicating Sensitive Information.
  • Employers should strive to keep communication channels open, even in challenging times. See Communicating During Times of Change.

Effective Workplace Communication

Effective workplace communication provides the foundation for positive and cooperative working relationships. It not only assists in increasing productivity and workforce morale, but it can be an effective risk management tool.

In examining an organization's communication methods, employers should consider meeting the following goals:

  • Information dissemination;
  • Employee engagement and motivation;
  • Improving performance;
  • Legal compliance; and
  • Encouraging integrity, openness and honesty.

Employers should ensure that employee concerns and complaints are addressed in a prompt, confidential and impartial manner. Ineffective workplace communication often leads to employee dissatisfaction and can result in unnecessary and expensive litigation. As such, effective workplace communication must be valued, embraced and demonstrated by management, and filtered throughout the entire organization.

Internal and External Communications

The employer's overall message - whether verbal, nonverbal or written - has to be consistent and supported by action. While most organizations devote substantial time and resources to developing effective strategies for external communication, whether this communication be to distributors, retailers, customers or other third parties, often less emphasis and time is given to promoting internal communication. Ensuring effective internal communications with applicants and employees can prove to be an effective risk management tool, and can prove to have as great an impact on an organization's bottom line as effective external communications.

Because many organizations involve multistate operations, management is often decentralized, creating challenges in the dissemination of information to employees. See Types of Employers and Workers > Multistate Employer. These challenges can leave employees feeling unmotivated, uninformed and uninvolved.

Added to this dynamic is the fact that workforces are increasingly becoming more diverse. As such, organizations have much more to consider in order to ensure policies and other pertinent workplace information is effectively communicated to employees.

Good communication among co-workers means that employees have better access to the information needed to effectively perform their jobs. In addition, effective communication is also the basis of effective teamwork. Because team members are in constant communication, developing and encouraging good communication ensures accountability and consistency with respect to work procedures and work rules.

Employers tend to overestimate how their employees feel about their jobs. Surveys commonly show gaps between employers and employees regarding value-sharing and trusting management. Additionally, many employees poorly rate their employers regarding opportunities for advancement and fostering motivation.

Implementing Effective, Coordinated Communication Techniques

Improved workplace communication techniques can often correct any disconnect between employers and employees. Using focus groups, employee surveys and discussion groups can encourage employees to share their viewpoints. See Employee Management > Employee Retention > Measuring Employee Attitudes. Organization meetings and conference calls, or written communications such as memos, emails and newsletters, provide opportunities to communicate organization direction and keep employees informed. Moreover, while traditional face-to-face communication methods are useful for training and onboarding programs, videoconferencing and webcasts assist in managing decentralized employee populations.

Employers should implement a disciplined, planned approach to employee communications, and avoid ad hoc solutions. Employers should regulate and monitor the use of various communications tools to ensure a productive workplace. Moreover, they should be employed to share a cohesive message, and to reinforce and redistribute verbal or written information found elsewhere. For example, notices displayed on a bulletin board may also be enclosed with employees' paychecks.

Internet use yields additional communications resources. From company blogs and social media pages to an organization's intranet, technology has made it easier for employers to disseminate a variety of employee-focused programs across a wide expanse. However, all methods of communications bring attendant challenges. See Communicating Employer Expectations and Work Rules.

Employee Surveys

Employee surveys offer employers a method of anonymously gathering employee opinions regarding communications programs via questionnaires. Employee surveys help employers to determine the general workplace climate and the current level of employee satisfaction. See Employee Management > Employee Retention > Measuring Employee Attitudes.

Because there are many consultants that specialize in conducting employee satisfaction surveys, many employers choose an outside source to ensure quality. Employers who choose to conduct an in-house employee survey should consider:

  • Making the questions simple to answer and quantifiable;
  • Guaranteeing anonymity of participants;
  • Determining the best mode of delivery;
  • Offering friendly reminders to improve participation rates; and
  • Communicating the results.

Compensation and Benefits Communications

Effective, coordinated communications regarding benefits and total rewards help employees make informed choices.

See

Benefits Communications;

Total Rewards - Concept and Implementation.

Researchers have found that employees who rate their benefits education highly also rate their employers as excellent places to work.

Communication is a vital part of employee compensation and benefits programs.

See

Benefits Communications;

Employee Compensation > Recordkeeping.

Building an effective benefits education strategy is crucial in managing employee expectations regarding employer-provided benefits, especially when those benefits may be limited when compared to competitors' packages.

Employers should ensure proper communication by studying the:

  • Employee population, e.g., demographics and life stages;
  • Available resources;
  • Organization culture; and
  • Delivery systems.

Understanding the audience and the best method of information delivery ensures the creation of a communications plan that is employee-friendly, easy to understand and simple to roll out. Offering employees sufficient education tools is vital to a successful program. The most frequently used delivery methods include:

  • Annual customized total compensation statements;
  • Access to an employer's intranet or other website;
  • Printed information and brochures;
  • Email communications from employers;
  • Information presented in one-on-one or group meetings so employees can ask questions; and
  • Online interactive tools.

Certain benefits communications are legally required. See Benefits Communications. The only required employee communications under the FLSA are as follows:

There are many situations where it is prudent, but not required, to communicate with employees about FLSA issues, including:

Taking a strategic approach to compensation and benefits communications helps employees to understand federal requirements, to be aware of legal protections and to appreciate employer programs. Effective compensation and benefits communications can have a profound impact on job satisfaction and morale.

Communications and Training

Training communications generally relate to one of three areas:

  • Disseminating the employer or corporate communications plan;
  • Communicating employer training options; or
  • Developing employee communication skills.

Employer Communications

Employer communications encompass all areas of the organization, from customer loyalty programs and marketing materials to employee recruitment and retention programs. In larger corporate organizations, the program should address the various segments of the corporation, and ensure that employees are trained in corporate goals and culture.

A communications strategy should take a disciplined approach, and include a formal, written communications plan addressing different stakeholders. Effective communicators enjoy positive relationships with employees, regulators, and clients, and are generally more fiscally stable entities.

Employers should tailor their communications strategy to their particular needs, be receptive to change and adaptive to innovation. Effective communicators often receive input from a variety of stakeholders: HR, directors or executives, senior managers, labor representatives, as well as the employer's own communications or marketing department, if applicable. The program should communicate the organization's culture in order to ensure culture fit with its employees, and to reinforce internal business goals.

Employees should be provided the opportunity to ask questions about corporate policies and get clarification, if needed. Employers should create opportunities to:

  • Distribute and train employees on new, or revised, policies;
  • Explain to employees the reasons for the new, or revised, policies; and
  • Answer any questions employees may have.

Employee attendance at these meetings should be documented and saved in each attendee's personnel file.

See Employee Handbooks - Work Rules - Employee Conduct; Recordkeeping; Employee Discipline.

Training Communications

Employers should ensure employees are informed of available training programs, whether optional or mandatory. See Training and Development. Examples of training programs offered may include:

  • Mandatory in-house training courses educating employees on topics of health and safety;
  • Benefits programs or organization benefits policies (See Benefits Communications);
  • Programs satisfying state training requirements on harassment prevention, including topics on internal work rules such as codes of ethics and zero tolerance policies (See EEO - Discrimination; EEO - Harassment);
  • Mandatory external training required by professional associations or state agencies;
  • Optional in-house management training; or
  • Information sessions on career development opportunities, including programs subsidizing employee undergraduate, graduate or professional education.

Regardless of whether training is optional or mandatory, or internal or external, employers need to develop methods of adequately communicating the availability of training programs. Frequently used means include:

  • Onboarding programs (See Onboarding and Orientation);
  • Newsletters, memoranda or emails;
  • Regular meetings, whether face-to-face or web-based;
  • Broadcasts of trainings, including podcasts;
  • Videoconferences; and
  • Intranet- or Internet-based communications.

Communication Skills Development

Offering employees opportunities to enhance their communication skills through internal and external training programs can help them become effective communicators and leaders. This type of training is usually reserved for employees who are high potentials. See Leadership and Communication Training. Clear communication skills are especially important for employees in supervisory roles, who often fulfill legal training requirements on behalf of the employer.

Communicating Employer Expectations and Work Rules

Effectively communicating workplace policies and procedures is not only important to the overall success of an organization, but in many instances, it is legally mandated. State and federal laws require employers to notify employees of certain employment-related rights and obligations. See also New Hire Paperwork.

Employers' methods vary as to how employment policies, whether new or revised, are distributed and communicated. The chosen method should, to the extent possible, coincide with the nature and importance of the new or revised policy. For example, for a particularly important policy, employers may require face-to-face training, written acknowledgments and additional email alerts.

Communicating Employer Expectations Through Job Descriptions

All employees should be presented with an unambiguous job description.

See Job Analysis and Documentation; Employee Retention > Recruitment and Selection.

To the extent that an employee may be asked to perform work outside of their specific job description, that should be indicated in the job description itself and clearly communicated. Employees should:

  • Receive a copy of their job description; and
  • Acknowledge receipt of the job description.

The job description and the signed acknowledgement should be placed in the employee's personnel file.

Communicating Work Rules

Employers generally communicate their expectations regarding workplace conduct through policies and procedures included in employee handbooks. Employer expectations regarding employee conduct should be communicated to employees at various times, such as:

  • During selection and onboarding procedures;
  • When changes or updates to policies or procedures are made; and
  • During discipline or counseling meetings as reminders of employee obligations and workplace culture. See Communicating Expectations for Workplace Conduct.

Communicating Employee Rights

An employer must ensure that it is in compliance with a number of federal, state and municipal rules regarding labor and employment law postings. These notices communicate certain rights to employees. Employers must post notices in accordance with the applicable statutes and regulations and update the notices as needed. Certain notices may be posted electronically.

For organizations that have employees who telecommute or have other flexible work arrangements, the employer may wish to display posters through electronic means, such as on an intranet or through electronic mail. Employers should be aware that, depending on state or municipal requirements, telecommuting arrangements may give rise to additional posting requirements.

Federal notice-posting requirements include:

An employer's failure to post a mandatory notice could result in a substantial civil penalty. Unlike other compliance issues that may require an extensive, complex investigation by enforcement authorities, an employer's failure to post a notice is a fairly straightforward source of potential liability.

An employer failing to post the OSHA, EEO, FMLA and EPPA posters may be subject to a civil penalty or fine. Under the 2015 Inflation Adjustment Act, federal civil penalties are adjusted for inflation.

For more information on federal, state and municipal notice-posting requirements, see Federal Workplace Labor and Employment Law Posters; State Workplace Labor and Employment Law Posters; and State Requirements.

Disseminating Policies

While the manner of communicating policies may be different in every organization, common methods include the following:

  • Employers generally have unwritten policies and practices, whether or not a formal written handbook is issued to employees. Employers establish their expectations as well as help employees to understand their rights and responsibilities by effectively communicating their rules, policies and procedures.
  • Employee handbooks have no set format or content requirement. However, employers should avoid issuing a long, burdensome tome that few employees would want to read.
  • Where an employer has multiple locations, especially in different states where laws may vary, multiple versions of handbooks may be advisable.
  • Although the traditional method of distributing employee handbooks is in hard copy form, many employers use an intranet to disseminate this important document. Regardless of the method chosen, employers should conclude with a confirmation of receipt that includes:
    • An acknowledgment that the employee has read and understood the handbook;
    • A requirement that the form be signed and returned by a set date; and
    • An inclusion of the acknowledgment in the employee's personnel file.

Handbooks are legal documents. Because laws and organization policies are fluid, employers should monitor and update employee handbooks on a regular basis. Employers have the right to modify or eliminate policies as long as they provide employees with reasonable notice and the alterations do not interfere with vested benefits.

See HR Management: Federal; Employee Handbooks - Work Rules - Employee Conduct: Federal.

Employment At-Will

When communicating with employees, whether in writing or orally, employers should ensure that the at-will status of the employment relationship is not compromised.

See

Terms of Employment;

Employment At-Will.

Prudent employers include a disclaimer retaining the employee's at-will status in the handbook or policy manual.

To that end, employers should avoid using words such as "permanent," "cause," or "just cause," when drafting policies, and specifically in connection with disciplinary decisions, up to and including firing decisions. To the extent an organization has a progressive discipline policy, beware of requiring a strict adherence to the policy, i.e., that the progressive discipline will always be followed. See Progressive Discipline Policy; Employee Management > Employee Discipline. These statements may be considered inconsistent with employment that is terminable at-will. Rather, it is probably better to advise employees that while a progressive discipline policy exists, management reserves the right to skip steps in the process as necessary, up to and including immediate firing.

Employers should ensure management's compliance with respect to communications regarding employment relationships. Supervisors should be advised and reminded that their communications to employees can be enforceable and constitute a waiver of the at-will relationship. Specifically, supervisors should refrain from making oral promises to employees regarding disciplinary or firing decisions.

Bulletin Boards

Employers may install different bulletin boards as part of their communication plan. Employee bulletin boards should:

Employers may install a bulletin board with a sliding glass door that can be locked in order to avoid removal of required postings or posting of unauthorized material.

Employee relations bulletin boards allow an opportunity for employees to communicate with each other, such as by listing items for sale. These types of bulletin boards may be integrated or separate from bulletin boards posting required information. Employee relations bulletin boards may also showcase employee accomplishments and awards, thereby boosting employee morale. See Employee Recognition Programs.

A policy maintaining employer control over the types of material posted is advisable. This policy should define the approval process and any limitations (such as size and content) for hanging nonwork-related materials. Rules regarding posting and removal dates and removal of offensive materials should be consistently applied.

Solicitation and Distribution of Literature

Organization policy should define when and where employees may distribute nonwork-related literature or solicit involvement in personal activities. The distribution of nonwork-related literature may include union organization materials.

Under the National Labor Relations Act (NLRA), employees have the right to organize, form, join or assist a union to negotiate with their employer concerning terms and conditions of employment. See Labor Relations > Union Organization and Labor Relations. Additionally, employees may discuss terms and conditions of employment or union organizing with co-workers or a union representative.

Employers have the right to ban nonworkers from soliciting and distributing literature on organization property at any time. However, employers may not prohibit employees from soliciting and distributing literature in nonwork areas of organization property during nonwork hours. Employers may forbid the distribution of literature in work areas during both work and nonwork hours.

See Labor Relations > Union Organization and Labor Relations; Nondistribution and Nonsolicitation Policies - Supervisor Briefing.

Publications

Written communication formats now include the opportunity to host organization blogs, maintain social media pages, and offer a company intranet. Employers also continue to use conventional written publications, such as newsletters, to connect with employees.

Internal Communications

Internal communications comprise a wide array of information including:

  • Recruitment, promotion, onboarding and orientation materials;
  • Performance management tools;
  • Training and development opportunities;
  • Compensation information; and
  • Benefits communications.

Employers have traditionally used a newsletter format to communicate important information to employees. At one time, delivery of the organization newsletter was exclusively in printed form. However, many employers prefer to distribute newsletters via email or to post them on the organization's intranet site.

Organization newsletters with the greatest impact seek to motivate rather than just inform. Instead of focusing on random news events, the primary goal of employer newsletters should be to increase employee engagement and motivation.

To do this, employers should develop organization newsletters that:

  • Communicate something newsworthy about one or more employees;
  • Use direct quotes from those involved; and
  • Highlight each story with photos of employees.

External Communications

Employers should include policies limiting an employee's external communications on behalf of the organization. Employees should not speak on the organization's behalf without prior authorization.

Official postings or documentation provided to external audiences should be pre-approved by the employer. If the employer is a publicly traded company, employee statements regarding the corporation's worth, share price or performance should be avoided.

Employers often monitor:

  • Employee speeches; and
  • Publications.

To ensure that these external communications reflect positively on the organization, employers need to develop guidelines that explain the appropriate steps that employees must take before producing articles or making public presentations. Employers should reiterate their expectations regarding transparency, confidentiality and conduct. In addition, employers need to address external communications using electronic or online means.

An employer must exercise caution in crafting policies regarding external communications so that any restrictions would not be overbroad under the National Labor Relations Act.

Electronic Communications

Electronic communication has become the preferred method of reaching employees because it:

  • Connects a global workforce; and
  • Offers constant connectivity with more options, e.g., media presentations.

Electronic communications may include the use of the intranet, Internet, email, voicemail, IMs and texting. Creating a policy regarding the use of electronic communications during work hours prevents employees from misusing systems and may avoid claims of invasion of privacy later on. See Employee Privacy.

A clearly written policy should:

  • List the electronic communication formats involved;
  • Define prohibited communications, such as profane, discriminatory or offensive material (See EEO - Discrimination; EEO - Harassment);
  • Outline disciplinary actions for improper use (See Employee Discipline > Workplace Theft);
  • Explain that there is no expectation of privacy for information sent and received through the organization's electronic, web-based and wireless systems (See Electronic Privacy, Employee Privacy); and
  • Ensure only authorized access to the organization's files and computer systems.

Electronic Privacy

In the workplace, federal and state laws provide some control over employee communications. Traditionally, US employees have had limited expectations of privacy in the workplace. This lowered expectation of privacy allows employers to monitor and review employee communications.

Employers often institute rules that either limit or prohibit personal use of workplace email and advise employees that the organization reserves the right to monitor all employee electronic communications. Employers should prepare carefully drafted policies that explain how they intend to monitor employee communications. This includes notifying employees that there is no guarantee regarding the confidentiality of personal information stored on any electronic or network device belonging to the organization.

The Supreme Court has held that an employee's rights against unreasonable searches are not violated when an employer reviews an employee's personal messages sent using an employer-issued mobile device. City of Ontario, California v. Quon +130 S. Ct. 2619 (2010). The Court's ruling in Quon places the onus on employers to revisit their employee monitoring policies in order to minimize liability. See Employee Privacy: Federal. Employers should ensure that their searches of work-issued electronic devices are work-related and, therefore, reasonable.

In addition, due to changing case law, supervisors should be warned against guaranteeing the privacy of employee communications. These statements could create an expectation of privacy in the employee, even if that expectation was contrary to internal policy and practice.

Applicable federal statutes regarding privacy in communications include:

  • Electronic Communications Privacy Act (ECPA), +18 U.S.C.S. § 2510;
  • Stored Communications Act (SCA), +18 U.S.C.S. § 2701. Employers may be in violation of the SCA when accessing employees' personal accounts in order to enforce internal policies and practices; and
  • USA Patriot Act - The government may access business records, including financial records, of employees for use in investigations.

Online Restrictions and Social Media Policies

With the constantly changing world of social media, many employers have found it necessary to develop guidelines in order to monitor and control their employees' use of online communications. According to recent surveys, a majority of US companies ban workers from using social networking sites while at work. However, employers should be aware that employees' use of social networking sites while off duty, if this use includes the sharing of confidential information or the posting of libelous comments, may still have consequences for employers. See Employee Privacy.

While social media guidelines will vary according to employer needs, at a minimum they should include statements regarding:

  • Transparency: self identification and taking personal responsibility for what the employee publishes;
  • Confidentiality: respecting proprietary, copyright, and other sensitive matters;
  • Conduct: avoiding discriminatory, misleading and offensive comments and behavior;
  • Usage: defining who may post on a organization blog; and
  • Value: providing worthwhile information and perspective.

Employers are limited in their enforcement of employee work rules for activity on social media sites. The National Labor Relations Board (NLRB) created a sphere of activity when it filed a series of administrative complaints against employers, cautioning that employees' federal rights are violated when they are disciplined or fired for making certain postings on social media sites.

Because this is a legally evolving area, employers should review their social media policies on an annual basis. In their review, employers should consider the following:

Does the policy restrict employee rights under the National Labor Relations Act (NLRA)?

The NLRA broadly defines "protected concerted activity." An employer violates the NLRA by:

  • Firing an employee for posting negative remarks about his or her supervisor on a social media site; and
  • Maintaining an overly broad social media policy that prohibits employees from making "disparaging, discriminatory, or defamatory comments" when discussing the employer or the employee's supervisors, co-workers or competitors.

Does the policy contain an adequate NLRA disclaimer?

Employers may minimize their liability before the NLRB by including adequate disclaimers with respect to social media policies. Regulators will consider disclaimers when evaluating whether a social media policy violates the NLRA.

A disclaimer may state that "this [social media] policy is not intended to interfere with employees' rights under the NLRA and will not be applied in that fashion." Obviously, the broader the social media policy, the more specific the disclaimer must be to ensure that the policy does not apply to discussions or activities related to or involving the terms and conditions of employment.

Does the social media policy state and serve a legitimate purpose?

Employers may show the reasonable business purpose of a social media policy in protecting both employers and employees by including:

  • Rules of use during work hours;
  • Obligations to comply with internal policies and applicable law prohibiting workplace harassment and discrimination; and
  • Clarification of content ownership, monitoring, and enforcement.

Does the policy contain overbroad or unclear language?

An employer's social media policy should not broadly restrict employees from using social media sites, or from discussing various workplace issues, such as their wages, hours or working conditions.

Is the policy applied and enforced consistently?

Employers should apply and enforce social media policies in a uniform and consistent manner. Disparate treatment of a group of employees who use social media to discuss work conditions may be seen as a violation of the NLRA.

Employers should train employees and managers on the organization's social media policy, ensuring that the policy truly accomplishes the goals for which it was intended. See Training and Development. Employers should obtain written acknowledgements from employees confirming receipt and understanding of the policy.

In addition, employers should apply discipline policies consistently. Not all employee conduct on social media sites is protected: employers may still discipline employees for violations of work rules and codes of conduct. Specifically, employers may discipline employees whose comments did not relate to the terms and conditions of their employment, or employees who did not seek to involve other employees in issues related to employment. See How to Discipline Misconduct Related to Social Media.

Use of Mobile Devices

Employers may create a policy that limits the use of employer-issued mobile devices, including mobile phones. See Electronic Privacy; see also Work-Related Driving Policies. Employers may include a provision restricting the use of these devices with respect to personal communications. Additionally, employers concerned with security may limit the use of mobile devices with cameras in the workplace, or in specific areas of the workplace. See Employee Privacy.

When creating a mobile device policy, include restrictions on the use of employer-provided mobile phones and wireless communication devices, including limitations on hours and reasons for use.

Employers should also be aware of applicable restrictions on the use of mobile devices. Many states prohibit drivers from using handheld mobile devices, or ban messaging while driving. These laws prohibit creating or reading any message from any electronic device even when the vehicle stops due to traffic or traffic lights.

Exit Interviews: Best Practices

Although not legally required, exit interviews offer an opportunity for employers to learn from departing employees their thoughts about employment with the organization. In the case of a hostile employee, an exit interview may reveal negative, yet helpful information. Employers should implement methods to minimize liability with respect to conducting and documenting exit interviews. See Voluntary Terminations.

While there are a variety of options for how to conduct exit interviews, best practices suggest:

  • Speaking to employees upon first learning of a resignation;
  • Asking employees to complete a brief written exit questionnaire prior to the meeting;
  • Conducting the interview face-to-face;
  • Using someone trained in conducting exit interviews (such as an HR representative) and outside of the employee's direct line of supervision;
  • Preparing in advance for the meeting;
  • Conducting the interview in a quiet, confidential location;
  • Covering important topics such as final pay, benefits continuation and return of employer property; and
  • Utilizing the information obtained in order to assess corporate climate and improve employee retention.

Exit interviews can be especially valuable in situations where the departing employee has had access to sensitive information. See Restrictions on Employee Communications.

Communicating Sensitive Information

Employers should limit access to employee communications to only those with a need to know. Employers should guard against needless sharing of sensitive information. The following instances call for discretion:

  • Performance appraisals;
  • Discussion of internal investigations;
  • Information related to possible or pending litigation;
  • Internal or external whistleblower complaints; and
  • Internal or external sexual harassment or hostile environment claims.

Information that the employer wishes to keep confidential should be made reasonably hard to find to those without access, such as by:

  • Labeling information as confidential and proprietary;
  • Making files password-protected;
  • Restricting access to servers;
  • Keeping sensitive files under lock and key; and
  • Installing security measures, such as surveillance equipment. See Employee Privacy.

Employers should exercise caution in requiring confidentiality of employees. An overbroad requirement may be prohibited by protections under the National Labor Relations Act (NLRA) or other federal laws and regulations.

Employers should implement measures to safeguard medical, private and confidential information that may be protected by the Health Insurance Portability and Accountability Act (HIPAA) or the Americans With Disabilities Act. See Health Information and Privacy (HIPAA); Disabilities (ADA).

Failure to properly safeguard sensitive information could result in:

  • Negative publicity for the employer;
  • Regulatory penalties;
  • Trade secret disclosure; or
  • Liability for various claims, including defamation, harassment and invasion of privacy.

Communicating Performance Appraisals

Employers should clearly communicate with employees if performance expectations are not being met. See Communicating Poor Reviews. If an employee is demonstrating deficiencies in a particular area, employers should immediately bring these deficiencies to the employee's attention, with guidance on how their performance can be improved.

Discussions with employees regarding deficient work performance should be documented. Documentation regarding employee evaluations should be detailed, clear, concise and should contain facts (who, what, when, where, how), not supposition. See Performance Appraisals > Rely on Measurable, Observable Facts. In addition, management should provide employees with an opportunity to add comments, as necessary. The documented communication should then be signed by both the supervisor and the employee, and placed in the employee's personnel file.

In addition to documenting and communicating instances of poor performance, employers should also commend employees when their performance improves, or when it meets or exceeds expectations. These notes of commendation should be placed in the employee's personnel file. See The Art of Communicating a Performance Review.

Work Rules Violations, Disciplinary Communications and References

Employers should communicate employer policies and work rules in a consistent manner. This ensures that employees remain aware of employer expectations.

If an employee violates a work rule or policy, the employee should be immediately notified of the violation. Employers should inform the employee of the:

  • Work rule that was violated;
  • Necessary action to correct the violation; and
  • Requisite discipline to follow.

Discussions with employees regarding violations of work rules should be documented. The documented communication with the employee should be detailed, clear and concise, and should contain facts (who, what, when, where, how), not supposition. In addition, supervisors should provide employees an opportunity to make comments as necessary. The documented communication should then be signed by both the supervisor and the employee, and placed in the employee's personnel file.

Employers need to be direct and fact intensive when communicating to an employee that he or she has been disciplined or terminated. Supervisors need to remain focused on the factual reasons for the disciplinary action. Supervisors should resist being diverted off course into potential emotional reasons for the discipline. Employers should communicate problems with behavior, not personalities.

Prior to communicating employee discipline, supervisors may find preparing an outline helpful. This ensures that all necessary information supporting the discipline is addressed with the employee. See Employee Discipline > Documentation.

If an employee leaves a termination or disciplinary meeting unclear about the employer's decision, it could lead to the employee being angry, resentful and hurt. An employee harboring these types of emotions often contributes to lower co-worker morale, and may later file charges or bring claims against the employer.

While employers are not usually obligated to provide the reasons for a firing or disciplinary decision, it is probably good business practice to provide the employee with an explanation for the employer's decision. However, any explanation should be fact based (who, what, when, where, how), and should provide all of the reasons for the employer's decision.

Employers should refrain from discussing the reasons for an employee's termination with other employees or third parties, unless that person has a reason to know the reasons for the termination. For purposes of reference checks, it is sufficient to advise employees that the employee is no longer with the organization - nothing more need be provided.

When communicating conduct policies or disciplinary decisions, employers should be careful not to change the nature of an employee's at-will employment. This caution applies when communicating with employees whether in writing or orally. To that end, employers should avoid using words such as "permanent," "cause" or "just cause" in connection with disciplinary decisions, up to and including firing decisions. See Employment At-Will. Likewise, employers should avoid using any language that could infringe upon an employee's existing legal rights and protections, including retaliation protections, the ability to lodge administrative complaints or the ability to engage in protected, concerted activity or other lawful labor activities.

Employers should advise employees that while a progressive discipline policy exists, management reserves the right to skip steps in the process as necessary, up to and including immediate firing. See Progressive Discipline. Supervisors should also be advised and reminded that their communications to employees, particularly oral promises, can be enforceable and potentially constitute a waiver of the at-will relationship.

Compliance With the National Labor Relations Act

The National Labor Relations Board (NLRB) has reminded employers that the maintenance of a work rule may violate the NLRA if it has a "chilling" effect on an employee's protected activity, such as discussions of terms and conditions of employment and union organizing.

Examples of rules and policies frequently at issue include:

  • Confidentiality rules;
  • Employee conduct/professionalism rules;
  • Third party/media communications rules;
  • Logos, copyrights and trademark rules;
  • Photography and recording rules;
  • Rules restricting employees from leaving work; and
  • Conflict of interest rules.

When drafting work rules pertaining to sensitive or confidential information, employers should be aware that a work rule may be found unlawful if it specifically prohibits the disclosure of employee information regarding the terms and conditions of employment such as wages, hours, benefits and working conditions or employee contact information.

However, rules requiring employees not to discuss trade secrets such as recipes, preparation techniques, marketing plans or strategies, or sensitive date such as customer credits cards or contracts and other similar personal identification information may be lawful because such rules do not infringe upon Section 7 rights. Similarly, handbook rules prohibiting the disclosure of confidential information belonging to the employer would be lawful if they do not reference employee information or any terms and conditions of employment because employers have a legitimate interest in maintaining the privacy of certain business information.

Restrictions on Employee Communications

In addition to the informational privacy inherent in employee workplace communications, an employer also has a vested interest in, and often a fiduciary duty to protect, confidential business information. Employers should frequently remind their employees about the need to keep business information confidential.

Employees should be encouraged to respect all copyright and intellectual property laws, including the federal:

  • Economic Espionage Act (EEA), which allows for the criminal prosecution of economic espionage and trade secret theft; and
  • Defend Trade Secrets Act of 2016 (DTSA), which provides employers with a federal civil cause of action in the event of trade secret theft.

Employers should discuss potential violations with the entire workforce in order to train employees on best practices regarding confidentiality.

Publicly traded corporations have additional restrictions regarding internal and external communications. Members of the management team may have fiduciary obligations to keep business information confidential. Aside from information that an organization desires to protect from third parties, public companies are prohibited by law from tipping or selectively disclosing material nonpublic information to outsiders.

In addition, and depending on state law, lower level employees may have a duty of loyalty to the employer. However, in some jurisdictions, only corporate officers or directors owe a duty of loyalty to the organization.

Employers should take care in drafting internal conflict-of-interest rules in order to protect business interests and also to respect employee's rights under the National Labor Relations Act (NLRA). In addition, the DTSA requires a whistleblower immunity provision be included in certain employment agreements.

Nondisclosure Agreements (NDAs) and Confidentiality Agreements

Not all employers are in highly regulated industries. For situations where regulations may not require an employee's discretion, the employer may require its employees to sign confidentiality or nondisclosure agreements (NDAs). In these agreements, employees agree not to disclose confidential information (including customer contacts, trade secrets and other proprietary information) during or after their employment relationship with the employer.

NDAs are particularly valuable in jurisdictions where noncompete agreements are unenforceable. In jurisdictions where noncompete agreements are enforceable, the confidential provisions of an NDA can be included within the noncompete agreement itself, rather than as a separate agreement.

All confidentiality agreements or NDAs entered into with employees, contractors or consultants on or after May 11, 2016, should include a whistleblower immunity provision under the federal Defend Trade Secrets Act of 2016 (DTSA). The DTSA protects employees from liability for disclosing a trade secret if it is:

  • Made in confidence to a government official or to an attorney for the purpose of reporting a legal violation; or
  • Disclosed to an attorney or, under certain circumstances, used in court by an individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law.

Employers that fail to notify employees of their protections under the DTSA will not be able to seek all of the remedies available under the DTSA (i.e., exemplary damages or attorney fees).

In addition, under the federal tax reform law, no employer deduction for ordinary and necessary business expenses is allowed for any settlement or payment related to sexual harassment or sexual abuse that is subject to a nondisclosure agreement. +115 H.R. 1 § 13307; +26 USCS § 162; Tax Reform Law - Comparison of Pre- and Post-Reform Provisions Affecting Employers. The employer deduction is also disallowed for any related attorney fees. The denial of deductibility affects any amounts paid or incurred after the effective date of the Act, or December 22, 2017. An employer should carefully review any settlement agreements, especially those involving multiple claims, in light of this development.

For more specific information on NDA templates, see Nondisclosure Agreement, Nondisclosure Agreement With Return of Materials Provisions and Nondisclosure of Confidential Employer Information Contract Clause.

Noncompete Agreements

Noncompete agreements are not used in all organizations, and may be unenforceable in jurisdictions that value employee mobility. See Noncompete Laws by State. To the extent they are utilized, in order for the noncompete to be enforceable, the agreement must be:

  • Necessary to protect certain employer interests;
  • Reasonable in time and scope;
  • Consistent with public interest; and
  • Supported by consideration.

In addition, the agreement must not infringe on any existing employee rights, such as the right to file an administrative complaint, the right to discuss terms and conditions of employment under the National Labor Relations Act or the right to file whistleblower complaints. See Nondisclosure Agreements (NDAs) and Confidentiality Agreements.

Typically, confidential business information is considered to be commercially valuable information that is specific to a particular organization. Confidential business information may consist of:

  • Customer lists;
  • Trade secrets; and
  • Goodwill, e.g., market position or company reputation.

A noncompete agreement that seeks to protect confidential business information may be used to prevent a former employee from leaving an organization's employ and going to work for a competitor. However, a noncompete agreement cannot be used to prevent ordinary competition.

Noncompete agreements must be of reasonable duration and geographical scope. For example, an employer in a state on the East Coast generally cannot expect a court to enforce a noncompete agreement that prevents a former employee from working in the Midwest.

In addition, the terms of the noncompete agreement must be reasonable, usually lasting no more than six months to a year. Sometimes it is beneficial for an employer to set different durations for different types of noncompete provisions. For example, an agreement may provide that:

  • Noncompete restrictions continue for six months;
  • The covenant not to solicit customers continues for one year (See Nonsolicitation Agreements); and
  • The covenant not to disclose confidential information continues indefinitely.

In the event an employee who has signed a noncompete agreement leaves an organization's employ, it is good business practice to conduct an exit interview with the employee. In preparing for the exit interview, employers should review the terms of the noncompete agreement to ensure all provisions are covered with the exiting employee during the interview. In addition, an employer should check the employee's online and computer activities (especially any downloading of files) in advance of the meeting.

During the exit interview, the employee should be reminded of the terms of his or her noncompete agreement, including his or her continuing obligations. In re-communicating the terms of the agreement, individuals conducting the exit interview should guard against unknowingly limiting the terms of the agreement.

In addition, the exit interview provides a good opportunity to gather information from the exiting employee regarding the information he or she obtained or accessed during his or her employment. The employer should obtain usernames and passwords for all employer-owned social media accounts at this time.

Employers should attempt to determine what the departing employee's future employment relationship will be. Specifically, a departing employee should be questioned about future plans so that the employer can learn:

  • The employee's reason for leaving;
  • The employee's new position;
  • If the employee intends to work for a competitor;
  • What activities the departing employee will perform for the new employer; and
  • Whether the departing employee intends to start a venture that may be competitive with the organization.

If the employee denies going to work for a competitor and then does so, the employee's misrepresentation may well be held against him or her if a court case ensues.

Asking an employee about his or her future plans minimizes an employer's exposure to unethical business practices. An employer's failure to inquire about an employee's postemployment plans could make it difficult for that employer to enforce any breaches of the noncompete agreement, because the breach may not be discovered until much later, and well after the damage has been done.

Nonsolicitation Agreements

Nonsolicitation agreements protect an employer's employees and customers from being lured away by a departing employee or a departing employee's new employer. Employers should ensure that nonsolicitation agreements, or nonsolicitation provisions included in a noncompete agreement, address all methods of "solicitation," including the use of social media sites. However, the agreements should be carefully drafted to enforce an employer's interests and also to respect an employee's rights under the National Labor Relations Act.

Finally, employers should be aware of any state law restrictions regarding nonsolicitation agreements.

Minimizing Communications Theft

Employers should ensure that departing employees do not breach any ethical or legal obligations with respect to confidential or sensitive information. Employers should also ask employees to verify that they are not in possession of any property or documentation that contains confidential or proprietary information. Employers should have a checklist of employer-issued items, including hardward, devices and data, that should be returned by a departing employee.

A search of the exiting employee's laptop or work area should be conducted to ascertain whether any information has been downloaded, saved on an external drive or forwarded via email. An employer should consider preserving any emails and forensically imaging electronic devices as appropriate.

Employers should also consider forwarding letters to exiting employees reminding them of their continuing obligations to the organization under any applicable noncompete agreements, as well as any other applicable laws that protect trade secrets or confidential business information.

Applicable federal statutes include:

  • Federal Economic Espionage Act (EEA), +18 U.S.C. § 1831 . Employers may seek criminal penalties under this statute in cases involving the theft of highly sensitive information;
  • Defend Trade Secrets Act (DTSA). Employers may file a civil claim for trade secret theft, seeking remedies including:
    • Injunctive relief;
    • Actual damages;
    • Exemplary damages of up to two times the amount of actual damages;
    • Attorney fees if misappropriation was willful and malicious or made in bad faith;
    • Reasonable royalty instead of damages; and
    • Third party seizure of property (obtained through a court order) in extraordinary circumstances to prevent dissemination of the trade secret.
  • Electronic Communications Privacy Act, +18 U.S.C. § 2510;
  • The Stored Communications Act (SCA), +18 U.S.C. § 2710. Employers may be in violation of the SCA when accessing employees' personal accounts in order to enforce internal policies and practices;
  • USA Patriot Act - The government may access business records, including financial records, of employees for use in investigations;
  • Federal Trade Commission (FTC) enforcement - The FTC and its state counterparts, i.e., attorneys general, enforce statutes and regulations against unfair competition, deceptive trade practices and misleading representations; and
  • Computer Fraud and Abuse Act (CFAA), +18 U.S.C.S. § 1030(a) , which provides for civil and criminal penalties in the event of damages stemming from unauthorized access to employer computer files and systems.

Practical Example

Christopher worked at Acme Holdings, and used an Acme-provided computer for his work. Acme did not maintain a computer usage policy or have any guidelines in place keeping employees from emailing work-related documents to their personal computers. Christopher emailed documents to himself prior to leaving Acme. Acme accused Christopher of stealing information, and filed a claim under the Computer Fraud and Abuse Act (CFAA).

Acme lost the suit because the CFAA only forbids unauthorized access to a computer. Because Christopher was still employed when he emailed documents to his personal computer, his use was authorized under the CFAA. See LVRC Holdings LLC v. Brekka, +581 F.3d 1127 (9th Cir. 2009).

Communicating During Times of Change

Employers should resist the urge to avoid difficult conversations, or engage in evasive communications, during times of change within organizations. Situations which present challenging communications issues include:

  • Mergers and acquisitions;
  • Layoffs, Plant Closings or Reductions in Force;
  • Pay cuts;
  • Wage freezes; and
  • Benefits cuts.

Changing established communication patterns during turbulent times may lead to employee resentment and suspicion, which in turn could result in a blow to overall morale. See Employee Management >Employee Retention > Retention Challenges Regarding Involuntary Turnover. However, employers should be mindful to communicate even during legally required "quiet periods," even if to say "There are no updates to report." See Employee Management > Employee Retention > Retention Challenges Regarding Mergers and Acquisitions. Keeping communication channels open, even during difficult times, provides the foundation for effective workplace communication.

Future Developments

There are no developments to report at this time. Continue to check XpertHR regularly for the latest information on this and other topics.

Additional Resources

Employee Use of Social Media May Constitute Protected Concerted Activity