September 17, 2021

GC Weekend: Don’t Get Spooked by Crackdowns on Leaks

secrets.jpgHappy Halloween spreadsheet zombies! The scariest (not to mention tragic) thing we’ve heard today is that there plenty of you working today. Hopefully you’re in costume at least.
Tricks and treats aside, on this final day of October we thought we would impend some legal wisdom upon you from our sister site, Above the Law.
We realize that some of you may be hesitant to send us tips for fear of retributThat’s a legitimate worry but luckily, this issue was addressed specifically, just yesterday, by a post on ATL.


The post relates to a law firm, Wilmer Hale, that was warning its associates about leaking information about the firm:

Meanwhile, in other firm news, we got our hands on the WilmerHale warning memo that we mentioned earlier this month. Truth be told, it’s a little disappointing — not nearly as scary as we were led to believe…
…If you’re at a law firm thinking about swearing your employees to secrecy regarding their workplace conditions, proceed with caution. A reader advises us:
[I]t might be useful to note that, if the firm has put a blanket prohibition on associates discussing their working conditions, they’ve clearly violated federal law — namely, Section 8(a)(1) of the National Labor Relations Act, 29 USC 158(a)(1). See Cintas Corp. v. NLRB, 482 F.3d 463 (D.C. Cir. 2007) (“confidentiality” rule that could be viewed as banning discussion of working conditions violates §8(a)(1)); Stanford Hosp. & Clinics v. NLRB, 325 F.3d 334 (D.C. Cir. 2003) (same w/r/t rule that banned discussion of working conditions with non-employees); Brockton Hosp. v. NLRB, 294 F.3d 100 (D.C. Cir. 2002) (same w/r/t rule that banned discussions of working conditions with other employees).

If you go to the original post that is linked in the blockquote, you will see many comments from Wilmer Hale associates that are similar to some of the comments we see here:

Ifyou [sic] don’t know already, KPMG leadership has assigned an employee to monitor this website, so you might reconsider where you’re posting from.
I heard it from someone who heard it from someone that KPMG has people trolling this site to try to determine where the layoff leaks are coming from so they can can their asses too. OK so it’s double hearsay but I believe it, after all would we expect any less?

We’re positive that this Orwellian environment isn’t a concern just at KPMG. Right now people are simply scared of losing their jobs by sneezing in the wrong direction. But let’s not forget that it’s virtually impossible for your firm to monitor every communication that you send. As Lat and Elie attest:

If you think your firm even has the ability to monitor every communication that you send — including calls, texts and emails sent from your personal cellphone — then you’ve been reading too many John Grisham novels. As for your work computer, if your firm monitors everything you do on it — using a key capture program to every keystroke you type, then reviewing said keystrokes — your firm probably isn’t a very nice place to work (and needs more real work for its IT people, so they don’t have time for cyber-witch hunts).

What about compensation matters? Funny you should ask:

This is also true with respect to compensation matters — a subject of keen interest to ATL readers, especially around bonus time. From a second reader, a labor and employment lawyer (not at WilmerHale):
FYI: to the extent WilmerHale precludes the ability of associates to discuss compensation information, it may be a violation of Title VII and/or the Equal Pay Act (and possible state and local equivalents). The ability of an employee to discuss and learn about compensation issues, which allows a potential claimant to discover what others are earning and if their jobs and compensation are essentially similar so as to qualify for “equal pay” under the statute (or if illegal discrimination occurred), is an essential need…. It can also be viewed as illegal retaliation if a policy was implemented after the fact, e.g., after someone cooperated with an investigation.

So as you can see, the law is on your side. You have every right to discuss your professional lives and your employment without fear of retribution.
Thanks to everyone that has provided us with tips since we’ve gone live. We want to hear from more of you so don’t hesitate to send us any information that you think will be great to share with the rest of our readers.
We’ll run down all the ways that you can send us tips so you can contact us however you prefer:
• Our tips email: tips@goingconcern.com
• Direct message on Twitter: @going_concern
• You can direct message my personal account on Twitter here.
• Send me a message on Facebook here.
• Join the GC group on Facebook and drop a line there.
If you still have doubts, check out the posts — in their entirety — at ATL.
Have a Happy (and safe) Halloween!
Congratulations to WilmerHale on a Major Pro Bono Win
(Plus the WilmerHale warning, and thoughts on law firms trying to crack down on leaks.)
[ATL]
WilmerHale Warns Associates Against Talking to ATL — But Has It Worked? [ATL]

secrets.jpgHappy Halloween spreadsheet zombies! The scariest (not to mention tragic) thing we’ve heard today is that there plenty of you working today. Hopefully you’re in costume at least.
Tricks and treats aside, on this final day of October we thought we would impend some legal wisdom upon you from our sister site, Above the Law.
We realize that some of you may be hesitant to send us tips for fear of retribution by your firm. That’s a legitimate worry but luckily, this issue was addressed specifically, just yesterday, by a post on ATL.


The post relates to a law firm, Wilmer Hale, that was warning its associates about leaking information about the firm:

Meanwhile, in other firm news, we got our hands on the WilmerHale warning memo that we mentioned earlier this month. Truth be told, it’s a little disappointing — not nearly as scary as we were led to believe…
…If you’re at a law firm thinking about swearing your employees to secrecy regarding their workplace conditions, proceed with caution. A reader advises us:
[I]t might be useful to note that, if the firm has put a blanket prohibition on associates discussing their working conditions, they’ve clearly violated federal law — namely, Section 8(a)(1) of the National Labor Relations Act, 29 USC 158(a)(1). See Cintas Corp. v. NLRB, 482 F.3d 463 (D.C. Cir. 2007) (“confidentiality” rule that could be viewed as banning discussion of working conditions violates §8(a)(1)); Stanford Hosp. & Clinics v. NLRB, 325 F.3d 334 (D.C. Cir. 2003) (same w/r/t rule that banned discussion of working conditions with non-employees); Brockton Hosp. v. NLRB, 294 F.3d 100 (D.C. Cir. 2002) (same w/r/t rule that banned discussions of working conditions with other employees).

If you go to the original post that is linked in the blockquote, you will see many comments from Wilmer Hale associates that are similar to some of the comments we see here:

Ifyou [sic] don’t know already, KPMG leadership has assigned an employee to monitor this website, so you might reconsider where you’re posting from.
I heard it from someone who heard it from someone that KPMG has people trolling this site to try to determine where the layoff leaks are coming from so they can can their asses too. OK so it’s double hearsay but I believe it, after all would we expect any less?

We’re positive that this Orwellian environment isn’t a concern just at KPMG. Right now people are simply scared of losing their jobs by sneezing in the wrong direction. But let’s not forget that it’s virtually impossible for your firm to monitor every communication that you send. As Lat and Elie attest:

If you think your firm even has the ability to monitor every communication that you send — including calls, texts and emails sent from your personal cellphone — then you’ve been reading too many John Grisham novels. As for your work computer, if your firm monitors everything you do on it — using a key capture program to every keystroke you type, then reviewing said keystrokes — your firm probably isn’t a very nice place to work (and needs more real work for its IT people, so they don’t have time for cyber-witch hunts).

What about compensation matters? Funny you should ask:

This is also true with respect to compensation matters — a subject of keen interest to ATL readers, especially around bonus time. From a second reader, a labor and employment lawyer (not at WilmerHale):
FYI: to the extent WilmerHale precludes the ability of associates to discuss compensation information, it may be a violation of Title VII and/or the Equal Pay Act (and possible state and local equivalents). The ability of an employee to discuss and learn about compensation issues, which allows a potential claimant to discover what others are earning and if their jobs and compensation are essentially similar so as to qualify for “equal pay” under the statute (or if illegal discrimination occurred), is an essential need…. It can also be viewed as illegal retaliation if a policy was implemented after the fact, e.g., after someone cooperated with an investigation.

So as you can see, the law is on your side. You have every right to discuss your professional lives and your employment without fear of retribution.
Thanks to everyone that has provided us with tips since we’ve gone live. We want to hear from more of you so don’t hesitate to send us any information that you think will be great to share with the rest of our readers.
We’ll run down all the ways that you can send us tips so you can contact us however you prefer:
• Our tips email: tips@goingconcern.com
• Direct message on Twitter: @going_concern
• You can direct message my personal account on Twitter here.
• Send me a message on Facebook here.
• Join the GC group on Facebook and drop a line there.
If you still have doubts, check out the posts — in their entirety — at ATL.
Have a Happy (and safe) Halloween!
Congratulations to WilmerHale on a Major Pro Bono Win
(Plus the WilmerHale warning, and thoughts on law firms trying to crack down on leaks.)
[ATL]
WilmerHale Warns Associates Against Talking to ATL — But Has It Worked? [ATL]

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