Legal Mistakes by HR (Part 3)

Employers often mandate pay secrecy restricting employees from discussing wages with their coworkers.  The school of thought being that salary discussions would affect morale and company productivity.   Here's the potential legal mistake:

3.  Mandating confidentiality of wage information.  Remember the National Labor Relations Act?  Under Section 7 of the NLRA, employees may now legally discuss wages in the workplace with limited exceptions.     By maintaining a policy or practice that restricts employee freedom in this regard, an employer violates Section 8(a)(1) of the Act.

Now, here's where the "limited exceptions" comes into play.  Employees are legally allowed to have such discussions, but the law does not require that employers allow employees to do so during assigned work hours.  Caution:  If you prohibit employees from discussing pay during assigned work hours, ensure that you are placing the same prohibition on other conversations that are unrelated to work.  Other limits pertain to the content of discussions (protected information) as well as how the employee came into possession of the information (unauthorized access to employee information), etc.

Review your policies and practices to ensure you're not in violation. 
 

NLRA

Let's talk NLRA for a moment.  There appears to be some lingering confusion.

The federal National Labor Relations Act governs the rights and responsibilities of unions and private employers.  Excluded, with some exceptions, are public employees, independent contractors, employees of Federal, state or local government, etc. 

An employee doesn't have to be a member of a union to be protected under the NLRA as it protects the rights of employees to engage in "concerted activity."   "Concerted activity" takes place when two or more employees take action for their "mutual aid or protection regarding terms and conditions of employment."  This protection can extend to work-related conversations conducted on social media such as Facebook and Twitter.

Many employers prohibit employees discussing compensation or wage levels in the workplace, often communicating that such information is confidential.  These same employers would be surprised to learn that this policy or practice would violate federal labor law.    The National Labor Relations Act contains a provision, Section 7 (29 U.S.C. § 157), that gives all employees the right to "engage in concerted activities", including the right to discuss their terms and conditions of employment with each other. Section 8(a)(1) of the NLRA (29 U.S.C. § 158(a)(1)) makes it an unfair labor practice for an employer to deny or limit the Section 7 rights of employees. Based upon those two provisions, the National Labor Relations Board (NLRB) has taken the position for decades now that employers may not prohibit employees from discussing their pay and benefits, and that any attempts to do so actually violate the NLRA.

A couple of tips:

1. You can't prohibit employees from discussing compensation or benefits, but you can prohibit them from holding such discussions during assigned work hours.
2. Clearly communicate that employees are protected in discussing their own pay as well as pay and benefits of secondary employees if information was obtained through ordinary conversation with the second party. 
3. If information was accessed in a manner that was restricted, such as access to confidential files or other off-limit information, the company can take steps to uphold confidentiality.

Concerted Activity

When you think of the term "concerted activity" there is often an automatic assumption that a union, or union activity, is involved.  But that's not always the case.  Section 7 of the NLRA states "Employees shall have the right to self-organize, to form, join, or assist labor organizations, to bargain collectively through representatives of their choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities. . . " 

 

Protected concerted activity sometimes has nothing to do with unions at all.   Employees who get together and complain to management about their pay or benefits is engaged in concerted activity.   Concerted activity can include internal complaints of discrimination, discriminatory harassment complaints, etc., all of which is protected by Section 7 of the NLRA.