My Victory Over Bloomberg

Winning rule changes while keeping workers anonymous

In May of this year, I filed an unfair labor practice (ULP) charge against Bloomberg LP for maintaining illegal confidentiality, coworker non-solicitation, and customer non-solicitation rules in their standard employment agreement. These rules violated Section 8(a)(1) of the National Labor Relations Act (NLRA) because a reasonable employee would read them as prohibiting certain protected activity, including publicizing working conditions, soliciting coworkers to leave for a competitor as part of a broader course of protected activity, and soliciting customers to engage in a solidaristic consumer boycott of the company.

Yesterday, I entered into a settlement agreement with Bloomberg LP to rewrite its standard employment agreement in order to make it compliant with the NLRA and to notify all current employees that it would not enforce the offending rules.

The confidentiality rule was amended to state that:

Confidential Information does not include employment-related information generally accessible to all employees, such as wages, benefits, and terms/conditions of employment, which are not restricted from disclosure by this Agreement or Company policy for purposes of engaging in protected, concerted activity under the National Labor Relations Act. Notwithstanding the foregoing, employees who have special access to Company records that contain compensation, benefits and/or the specific terms/conditions of employment of others as part of their essential job functions, must treat such records as Confidential Information.

The coworker non-solicitation rule was changed so that it does not apply to the solicitation of employees, agents, consultants, or independent contractors and only applies to non-NLRA covered officers, executives, and supervisors:

For a period of three years from the date Employee’s employment with the Company terminates, will not induce or attempt to induce: (i) any officer, executive or supervisor employee, agent, consultant or independent contractor of the Company, or of any organization with respect to which the Company has agreed to a similar prohibition and of which the Employee has knowledge, to discontinue such affiliation with the Company or such organization, as the case may be

The customer non-solicitation rule was changed to include a clarification that allows the promotion of consumer boycotts of Bloomberg:

For a period of three years from the date Employee’s employment with the Company terminates, will not induce or attempt to induce … (ii) any former, present or future client, customer, vendor or other partner of the Company to reduce or discontinue any business relationship or to refrain from entering into any new business relationship with the Company, except in order to promote a lawful consumer boycott for the purposes of mutual aid and protection under the National Labor Relations Act.

Probably the most practically significant change is to the coworker non-solicitation rule. Previously, the Bloomberg standard employment agreement prohibited individuals from leaving the company and trying to entice their coworkers to come with them. The new agreement no longer does this.

The most interesting thing about this case to me is that I was able to get these changes to the Bloomberg LP employment contract without ever revealing the identity of the person who I was working for. I accomplished this by filing the charge with myself as the charging party rather than filing it with my client as the charging party. This is allowed under the Board regulations, but I don’t think many lawyers take advantage of it.

The value of this should be obvious: if an employer does not know which of their employees is behind the charge, they cannot retaliate against them. Thus, it is possible to get your employer to comply with the NLRA without incurring any personal risk.

Of course, this strategy only really works in cases like this where it is a challenge to an illegal employer rule or statement because, in other kinds of cases, the identity of the affected employee is necessarily revealed by the allegations. But still, even if it is just for these kinds of cases, being able to offer anonymity, at least during the pre-complaint stage where most cases settle, is quite valuable and I think more lawyers should do it.