Characteristics of Effective Trade Secrets and

Confidential Information Policies: Guidance from Labor Arbitration Cases

Franklin, D. & Ross, W. H. (2020). 

Labor Law Journal, Vol. 71 (1), 43-57. 

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In an effort to craft recommendations to manager regarding effective confidential information policies, the present paper reviewed 88 published grievance arbitration cases involving proprietary information, trade secrets, and confidential information.  Most  cases dealt with the application of managerial discipline for employee violations of company policies and collective-bargaining provisions.  Themes that emerged included:  The importance of a Management Rights clause (as well as specific misconduct clauses and policies), clauses that address changing business conditions (such as subcontracting and new technology), employee insubordination, theft, falsification, conflict of interest, and the need for training.  Additionally, arbitrators often considered specific laws that apply in health care, cable television, and telecommunication industries.  Finally, several mitigating factors were noted such as:  Having permission from a supervisor to access confidential information, safety, and whistle-blowing concerns.  By attending to factors that influence arbitrator decision making, managers and their attorneys can use these identified factors to create better policies and negotiate robust collective bargaining provisions.

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