It’s tempting for employers to put rules in the company handbook informing employees that they are prohibited from discussing wages and benefits with coworkers. Such policies often warn employees that violators will be subject to discipline up to and including termination. 
But who’s really in trouble because of that kind of policy? The employee polling fellow workers about their paychecks, or the employer that established the policy?
Recently a group of attorneys who concentrate on employment law were asked about policies banning discussions of wages, and they want employers to understand the importance of resisting the temptation to adopt such policies.
“I frequently run across policies in employment handbooks that prohibit employees from discussing their wages and benefits with coworkers,” Reggie Gay, a shareholder with the McNair Law Firm in Greenville, South Carolina, wrote in a recent issue of South Carolina Employment Law Letter. “Often, a policy will state that such information is confidential, and a violation of the policy may result in discipline, including termination.”
But Gay emphasizes that policies informing nonmanagement employees that they are not to discuss wages, benefits, and other working conditions are in violation of the National Labor Relations Act (NLRA).
Section 7 of the NLRA gives employees the right to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.” That right applies to both union and nonunion employees. Section 8 of the NLRA makes it an unfair labor practice for an employer to limit its employees’ Section 7 rights.
“The National Labor Relations Board (NLRB) has taken a long-standing position that those sections of the NLRA preclude employers from prohibiting employee discussions about pay and benefits,” Gay wrote, adding that “simply having a policy prohibiting employees from discussing their wages is illegal, whether or not you enforce such a rule.”
Gay also reminds employers that an employee’s right to discuss wages, benefits, and working conditions extends to social media, such as Facebook and blogs.
NLRA exceptions
The law does include limited exceptions, though. “Employers can set certain parameters and guidelines to help limit such discussions,” Gay says. “For example, you can prohibit employees from discussing wages and benefits while they’re supposed to be engaged in work.” But employers must be careful not to prohibit discussions of wages and working conditions during work time if they allow other types of conversations unrelated to work, he says.
To keep employees from feeling the need to discuss working conditions, Gay suggests keeping pay and benefits competitive with other employers and promoting open-door policies. “Encouraging employees to feel comfortable approaching management with questions or observations about their salaries and working conditions can often help minimize gossip and make employees feel valued,” he says.
Jason Ritchie, a partner with Holland & Hart LLP in Billings, Montana, also wrote about limits on NLRA protections in a recent issue of Montana Employment Law Letter. Under the law, “wage discussions should be for the purpose of advancing employees’ mutual goals (e.g., trying to induce group action or bring complaints to the employer),” he wrote.
Also, pay information must be obtained lawfully to be protected. The information must come from employees, not from an “unauthorized review of confidential HR files or a hijacking of pay stubs,” Ritchie says.
NLRB action
In devising policies, employers need to take steps to ensure that employees understand their rights under the NLRA. Lisa G. Whittaker, an attorney with Porter Wright Morris & Arthur LLP in Columbus, Ohio, wrote in a recent issue of Ohio Employment Law Letter about a 2013 case brought before the NLRB. In that case, the Board struck down rules implemented by DirectTV that instructed employees not to discuss “details about your job, company business or work projects with anyone outside the company.” The policy also instructed employees not to “give out information about customers or DIRECTV employees.”
Whittaker explains that the NLRB found that the company’s wording could lead employees to believe that they were being prohibited from discussing wages or other terms or conditions of their jobs.
The NLRB ruling shows that even rules that can be “reasonably interpreted as banning employees from discussing wages may be considered illegal,” Whittaker wrote. “For that reason, even broad rules prohibiting discussion of ‘confidential company information’ should include a disclaimer stating that the policy should not be interpreted as limiting employees’ rights to discuss working conditions.”
Whittaker reminds employers that they can restrict members of management from discussing wages, but policies shouldn’t prohibit nonmanagement employees from such discussions.
This is very interesting to me especially when I think about the fact that YouTube bans their employess from discussing their wages on YouTube, but this suggests that that’s would be ok if they also banned other discussions when they are supposed to be working, but on YouTube that wouldn’t apply because all discussions on YouTube are otherwise not work related. Do I predict a future legal case? “YouTube fires employee for discussing wages online, against section 7 of NLRA”.
My company always tries to prohibit our speech. They tell us to be “mindful of what we say in everything we say”. However, their definition of mindful, is to not talk about anything work related at all. We have to be professional in the sense of not talking about anything negative my job does. For example, our company hand book states that we are to be treated like a customer off the clock, yet we can also be treated like an associate off of the clock. They try to tell us that we must act the same way we act on the clock as we do off the clock. They have a policy that permits them to keep us from doing anything that the company might see as negative. They break the law all of the time. They not only prohibit us from talking about working conditions and pay, but from gossiping, standing up for ourselves (I’ve done it and they told me I was being disrespectful), and from speaking with the press. Their violating our free speech rights. They also break the law by discussion private work matters out in the open in front of other associates and customers. The manager’s office is directly across from the break room, with no door or wall blocking the sound coming from the room, where meetings are held. Other co-workers can hear their conversations and word spreads like a wild-fire when an eavesdropper is present. I want my company shut down, but it is a corporation, respected by customers, so it will be a long process of collecting evidence.