(Bloomberg) — Apple Inc.’s restrictive employee handbook rules and Chief Executive Officer Tim Cook’s recent pledge to punish leakers both violate U.S. law, according to new complaints that a fired activist filed with the National Labor Relations Board.
Most Read from Bloomberg
In filings Tuesday, former Apple employee Ashley Gjovik alleged that a September all-staff email from Cook, saying that “people who leak confidential information do not belong here,” violated the National Labor Relations Act, which protects U.S. workers’ right to communicate with one another and engage in collective action about workplace issues.
Cook wrote that Apple was “doing everything in our power to identify those who leaked,” and “we do not tolerate disclosures of confidential information, whether it’s product IP or the details of a confidential meeting.” His email followed media reports about a companywide internal meeting the prior week at which management fielded questions about topics such as pay equity and Texas’ anti-abortion law.
Gjovik’s filings also challenge what she says are several policies in Apple’s employee handbook that illegally interfere with workers’ rights, including restrictions on disclosing “business information,” talking to reporters, revealing co-workers’ compensation or posting impolite tweets.
Apple didn’t immediately respond to requests for comment.
Gjovik, a senior engineering program manager, was fired by Apple in September after filing complaints with state and federal agencies, including the U.S. Occupational Safety and Health Administration and U.S. Equal Employment Opportunity Commission, as well as the NLRB.
In documents shared by Gjovik, Apple claimed she was terminated for violating policies such as the disclosure of confidential product information. Gjovik has said she was fired in retaliation for her prior complaints, which alleged that — after voicing fears about workplace health hazards — she was harassed, humiliated and asked not to tell co-workers about her concerns.
Claims filed with the NLRB are investigated by regional officials, who if they find merit in the allegations and can’t secure a settlement, then issue a complaint on behalf of the labor board’s general counsel. That is then considered by an agency judge. Those judges’ rulings can be appealed to the NLRB members in Washington, and then to federal court. The agency has the authority to order companies to change illegal policies and inform employees about their rights, but generally can’t hold executives personally liable for alleged wrongdoing or issue any punitive damages.
Complaints like Gjovik’s stand a stronger chance of success now that Democratic appointees with union backgrounds run the NLRB’s general counsel office and make up the majority of the labor board’s members, thanks to President Joe Biden’s appointments this year. Employee handbook rules are one of many issues where the agency’s new general counsel, Jennifer Abruzzo, has signaled she’s interested in challenging Trump-era precedent.
In a precedent-setting 2017 case involving Boeing Co., the NLRB’s Republican majority at the time ruled that some company policies’ potential negative impact on employees’ rights could be outweighed by legitimate business rationales. One of the members who dissented in that case, Lauren McFerran, is now the NLRB’s chair and part of the new Democratic majority there that could overturn such precedents.
The rule described in Cook’s memo and the policies cited in Gjovik’s complaint might be deemed legitimate under the Trump-era Boeing standard, but “most if not all” of them would probably be illegal under earlier, more pro-labor precedents, said University of Wyoming law professor and former NLRB attorney Michael Duff. A case like Gjovik’s offers the Biden appointees “an attractive vehicle” to establish a precedent more like the pre-Trump ones, which prohibited rules that workers could “reasonably construe” as banning legally protected activism, Duff said in an email.
The current labor board is very likely to deem statements in Cook’s memo illegal, said former NLRB member Wilma Liebman, who chaired the agency under President Barack Obama.
“What he’s saying here goes too far” by limiting discussion about meetings where workplace issues are addressed, rather than only leaks about intellectual property, Liebman said in an interview. “It’s restrictive of people’s ability to talk about employment policies.”
Gjovik, who’s in law school, said in an interview that she’s hopeful her case could help Biden’s NLRB appointees establish a new more pro-labor precedent, as well as advancing workplace organizing at Apple by disrupting the company’s culture of secrecy.
“Ultimately,” she said, “we’re never going to see any systemic change at Apple without empowering the employees to feel comfortable speaking out as they are legally protected to.”
(Updates with more context in ninth paragraph and Gjovik’s remarks in 14th paragraph.)
Most Read from Bloomberg Businessweek
©2021 Bloomberg L.P.