1. During hearings, answer the questions asked.  Often, litigants ignore the question posed by the judge because the answer does not directly help his or her case.  A good attorney will anticipate the hard questions and be prepared to confront the weaknesses of his or her case directly.
2. Be mindful of your tone both when drafting anything to the court and when speaking in court.  Attorneys should avoid being too casual or using sarcasm or offensive language in open court and in court filings.
3. Be prepared and be on time.  With every court filing and court appearance, you have the opportunity to build your reputation as a trustworthy, competent, and professional attorney. 
4. It is helpful to research the judge you are appearing before to familiarize yourself with the judge's background.  An attorney who knows something about the judge's background can often better focus on issues the judge might be most interested in or draft arguments in a way that will appeal to that particular judge.

The National Labor Relations Board ("NLRB") took a jeweler's loupe to high-end jeweler and retailer Tiffany and Company's ("Tiffany") privacy policy (the "Policy"), and ruled that the Policy violated the National Labor Relations Act ("NLRA"), despite the Policy's savings clause.

In January 2013, Tiffany published its Policy governing how its employees were required to protect trade secrets, like client lists, and other confidential business information. Unfortunately, Tiffany took the "everything including the kitchen sink" approach to defining the phrase "confidential information," and included in a broad stroke, the "[n]ames, addresses, telephone numbers and non-Company emails of our . . . employees".  NLRB Case No. 01-CA-111287 (available here).  With this broad definition, the confidentiality provision prohibited employees from disclosing the forgoing employee contact information without exception. The Administrative Law Judge ("ALJ") that heard the case found that because the provision did not distinguish between information obtained by an employee during his or her normal work routine and data obtained from Tiffany's internal business records, it violated Section 8(a)(1) of the NLRA. Had the provision limited the prohibition to barring disclosure of information and data obtained from Tiffany's internal business records, the provision would likely have been upheld.

 Additionally, the following two Policy provisions were also subjected to NLRB scrutiny:

All employees have the responsibility of protecting Company Confidential Information to ensure:

- that all requests or questions by any media representative (newspaper, magazines, television or radio, etc.) for information regarding the Company should be directed to the Vice President -Public Relations or the Vice President - Investor Relations.

. . .

Information concerning the wages, benefits or other terms of employment paid by the Company to employees in general, with respect to specific positions, or specific individuals, is considered confidential information for purposes of this Policy and may not be disclosed outside the Company except as approved in writing by the Human Resources Department.

Recognizing the potential impact the preceding Policy provision could have on an employee's right to organize, form, join or assist a labor union, rights protected by Section 7 of the NLRA, 29 U.S.C. � 157, Tiffany inserted immediately after the clause, the following savings language:

This Policy does not apply to employees who speak, write or communicate with fellow employees or others about their wages, benefits or other terms of employment in the exercise of their statutory rights to organize or to act for their individual or mutual benefit under the National Labor Relations Act or other laws.

The ALJ held that the Policy's media restrictions violated the NLRA because they contained no exception that would permit an employee to exercise the right to speak publicly with the media about labor issues or employment terms, which is a right protected under the NLRA.

The ALJ also held that the savings clause was not drafted broadly enough to save the Policy from violating an employee's right to unionize under Section 7 of the NLRA. The ALJ found that the savings provision was too narrow in scope because although it excepted communications between fellow employees regarding wages, benefits or other terms of employment from the Policy's purview, it did not make an exception for employees who talked about their "conditions of employment" with others. Therefore, the ALJ held that the Policy interfered with the rights of Tiffany & Co.'s employees to unionize in violation of Section 8(a)(1). See 29 U.S.C. � 158. In sum, the ALJ strictly construed the Policy's savings clause, and held that because it did not effectively exclude each individually protected right as set out in the statute from the restrictions set out in the Policy, it would have an unacceptable chilling effect on protected Section 7 activity.

As the Tiffany & Co. case shows, courts and administrative bodies often interpret and re-interpret an employer's duties under the NLRA. Therefore, employers should be on guard by regularly reviewing their policies and procedures, including employee privacy policies, to ensure they comply with the NLRA.

_________

Edwin Cruz, Esq., is a litigation associate at the Miami office of Fowler White Burnett, P.A. His practice primarily focuses on labor and employment defense, ADA accessibility claims, and commercial litigation.

In the September newsletter article entitled "Miami-Dade Chastises Gov. Scott on Failure to Appoint Women to JNC," we noted that Governor Scott did not appoint any women to the Third District Court of Appeal or the Eleventh Judicial Circuit of Florida. We did not mean to imply that Governor Scott had not appointed any women to the bench but that he has not appointed any women to the JNC from those districts in the most recent appointments.  

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