Confidential Employee Designation

June 2017

By Katie Kaneko, President

During the course of our classification work we often find that within agencies the term “confidential employee” gets misconstrued to suggest that anyone who is exposed to confidential or sensitive, private information should be designated as confidential. This is a misnomer.

An employee’s obligation not to disclose sensitive information accessed through the execution of their job duties is more properly addressed by the ethical standards and codes of behavior set by the agency.

The definition of a confidential employee is more narrowly defined.  Specifically, any employee who is required to develop or present management positions with respect to employer-employee relations or whose duties normally require access to information that is used to contribute significantly to the development of management positions, such as future bargaining strategy or changes to policy that the employer anticipates may result from collective bargaining, would be considered confidential.

In accordance with the National Labor Relations Board Guide for Hearing Officers, “Confidential employees are those who assist and act in a confidential capacity to persons who formulate, determine and effectuate management policies with regard to labor relations or regularly substitute for employees having such duties.  Mere access to confidential labor relations material is not sufficient to confer confidential status.”  Therefore, by the definition, the confidential designation is not only dependent on the position being assessed but also the role of the person or position the studied position reports to.

Additionally, the National Labor Relations Board Guide for Hearing Officers suggests the following relevant questions to ask when assessing whether an employee is confidential:

  1. What are the duties of the employee?
  2. What are the duties of the employee’s supervisor? Does the employee’s supervisor handle the employer’s labor relations, e.g., bargaining or handling grievances, with respect to employees of the entire agency, department or other group?
  3. What is the nature of the confidential material handled? Get details of the type of material at issue, e.g., documentation relating to the employer’s proposals during bargaining, minutes of meetings where bargaining strategy is discussed, grievance investigation reports, employer’s policy on grievances, etc.
  4. How does the employee come in contact with the confidential material?
    • Is the employee present during management meetings regarding labor relations, e.g., preparation for bargaining sessions or discussion of grievances? If so, how often is the employee present (all the time or isolated incident)?
    • Does the employee assist in preparation of the confidential material? If so, describe how.
    • Where is the confidential material maintained and how does the employee have access to it?
  5. Does this employee substitute for a confidential employee? If so, how often?
  6. Do other employees also have access to the alleged confidential material? If so, who?  Develop details including the nature of the access to the material.
  7. Does the employee have access to labor relations policy data regarding the entire agency, one department, or another group?
  8. Does the employee have access to confidential material prior to the time that material is available to any labor organization or to other employees?

A clear understanding of the difference between a “confidential employee” and one who is exposed to confidential or sensitive information will result in equitable and defensible employee classifications.

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Koff & Associates