Employees have the right to discuss the terms and conditions of their employment, but they have no protected right to disclose trade secrets. But if your policy simply prohibits the “disclosure of confidential information,” you may run afoul with the National Labor Relations Act. The reason this clause is problematic is that it remains unclear what is meant by “confidential” information. An employee may reasonably believes this extends to talking about their pay, benefits, or workplace problems – each of which are protected discussions under federal law in some circumstances. Here’s a tip on how to protect your trade secrets while not interfering with these protected rights:
Your social media policy may forbid employees from disclosing proprietary information, so long as that information is reasonably defined (e.g., information about unreleased products, sales, market-share information, financial forecasts, customer lists, client lists, and research and development initiatives). Be sure to include examples of what is prohibited in order to alleviate any potential confusion.
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