🗞️ NLRB Strikes Down Broad Confidentiality Provisions Restricting Wage Discussions and Union Organizing

On January 5, 2026, NLRB Administrative Law Judge Andrew S. Gollin issued a decision finding that Hoffmann Brothers Heating and Air Conditioning, Inc. violated Section 8(a)(1) of the National Labor Relations Act by maintaining three separate confidentiality provisions that unreasonably restricted employees' Section 7 rights to engage in protected concerted activity and union organizing.

The case arose after a former employee, Steven Brunk, contacted coworkers about union employment opportunities after leaving the company. Hoffmann Brothers sent a cease-and-desist letter citing confidentiality obligations. The union subsequently filed unfair labor practice charges challenging the company's confidentiality policies.

Judge Gollin applied the Stericycle Inc. standard adopted by the NLRB in August 2023, which replaced the more employer-friendly Boeing test. Under Stericycle, workplace rules are presumptively unlawful if they have a reasonable tendency to chill employees from exercising their Section 7 rights, evaluated from the perspective of an economically dependent employee. Employers can rebut this presumption only by proving the rule advances a legitimate business interest and cannot be more narrowly tailored.

The judge found three provisions unlawful. The original Employee Non-Compete/Confidentiality Agreement defined "confidential information" as "any communication" learned through employment and explicitly prohibited disclosure of "compensation and benefit information" and "employee lists" without prior written consent. A revised version added savings clauses but still failed to adequately clarify protected activities. The Employee Handbook's Confidential Information Policy similarly prohibited disclosure of overly broad categories of information, including "team member contact information" and "business-related information."

The decision emphasizes that employees have fundamental rights under Section 7 to discuss wages and working conditions with each other and to share employee contact information with unions for organizing purposes. While employers can protect genuinely proprietary business information from competitors, restrictions must be narrowly tailored and cannot sweep in information about compensation or employee details that workers have the statutory right to share.

Judge Gollin rejected the company's argument that general savings clauses—such as stating the policy applies "to the greatest extent permitted by law" or is "not intended to infringe upon team member rights"—adequately cured the overbroad restrictions. The Board evaluates rules from the perspective of non-lawyers who cannot be expected to parse legal nuances or determine what disclosures are "permitted by law."

The decision ordered Hoffmann Brothers to rescind all three provisions, notify current and former employees, and provide revised documents with lawful language or inserts covering the unlawful provisions. The company must also post notices and mail copies to all former employees since December 21, 2023.

This ruling reflects the NLRB's current approach under Stericycle of heightened scrutiny of workplace rules that might chill protected activity, placing the burden on employers to demonstrate that restrictions are necessary and cannot be more narrowly written. The decision serves as a warning to employers to carefully review confidentiality policies, non-compete agreements, and employee handbooks to ensure they do not restrict employees' rights to discuss wages or engage in other protected concerted activities.

Key Points

• ALJ applied the stricter Stericycle standard, which presumes workplace rules unlawful if they reasonably chill Section 7 rights
• Three confidentiality provisions found unlawful: original agreement, revised agreement, and employee handbook policy
• Provisions explicitly prohibited disclosure of "compensation and benefit information" and "employee lists"
• General savings clauses like "permitted by law" insufficient to cure overbroad restrictions
• Employees have protected rights to discuss wages with coworkers and share contact information with unions
• Employers can protect proprietary business information but must narrowly tailor restrictions
• Rules evaluated from perspective of economically dependent employee, not disinterested legal observer
• Company ordered to rescind provisions, notify employees, and post remedial notices
• Decision reflects NLRB's current pro-employee approach to workplace rules and policies

Primary Source Author: Administrative Law Judge Andrew S. Gollin

Primary Source: Hoffmann Brothers Heating and Air Conditioning, Inc., Case 14-CA-344872, JD-01-26 (NLRB Division of Judges, Jan. 5, 2026)

Primary Source Link: Administrative Law Judge Decision

Supplemental Links

• National Labor Relations Act - Full text of federal labor law protecting employee rights
• NLRB Decision in Stericycle Inc. - 2023 decision establishing current standard for workplace rules
• Your Rights to Discuss Wages - NLRB guidance on wage discussion rights
• Interfering with Employee Rights - Overview of Section 7 and 8(a)(1) violations
• Stericycle Legal Analysis - Detailed analysis of new standard's impact
• NLRB Overview and FAQ - Frequently asked questions about NLRB processes
• Employee Handbook Compliance Under Stericycle - Guidance on handbook review
• NLRA History and Context - National Archives documentation of NLRA background