Can You Forbid Discussions of Salary and Pay?

Much as most employers would like to impose a ban on discussion of pay—not to suggest that there are embarrassing inequities in your pay structure—it’s not legal because the NLRB (National Labor Relations Board) says it interferes with Section 7 rights.

It’s all part of NLRB’s new expansive view of its role.

For insights about the overly aggressive NLRB and the recent court decision concerning the legitimacy of President Obama’s recess appointments, we spoke with Patricia Trainor, BLR’s senior managing editor, HR (BLR is CER’s parent company).

“There’s a very interesting situation at the NLRB now: A court has ruled that Obama’s interim appointments were invalid, so any actions the board has taken may be invalid as well,” says Trainor.

The administration disagrees, no surprise, and the NLRB says it is going to do business as usual. So the situation is uncertain at the moment. In any event, it’s helpful for HR managers to review what the NLRB has been up to.

Section 7 Rights

In recent years, the NLRB has taken an expansive view of Section 7 rights, says Trainor. Section 7 of the NLRA includes the right to engage in concerted activities “for the purpose of collective bargaining or other mutual aid or protection.” Importantly, Section 7 applies to all employees, whether unionized or not. 

Some Recent Rulings

Trainor offers the following examples of Board decisions:

Internal investigations. The Board has said that a generalized concern about the integrity of an internal investigation is insufficient to justify asking employees to refrain from discussing the investigation (which employers commonly do to encourage witnesses to come forward and cooperate).

The Board’s rationale: The request impacts Section 7 rights. An individualized assessment has to be made to determine if any witness needs protection, evidence is in danger of being destroyed, there’s a danger that testimony will be fabricated, or there’s a need to prevent a cover-up.

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Off-duty access. The Board has narrowed the circumstances in which employers can limit off-duty access to the workplace. Off-duty access policies have to balance the rights of employers to control access to their property with employees’ right to communicate with coworkers at the workplace on their own time regarding the terms and conditions of employment. 

So, for example, an employer can’t say “you can come to the workplace during nonwork time for a social event, retirement party, etc., but you can’t come during nonwork time to talk with coworkers.”

Social media. After lots of guidance, the NLRB issued its first decision on a social media policy and, not surprisingly, found the policy infringed on Section 7 rights. Specifically, the policy prohibited statements on social media that “damage the Company, defame an individual or damage any person’s reputation.” 

“One thing that struck me about the ruling,” says Trainor, “was that the Board did not distinguish in its analysis between defamatory and the arguably ambiguous ‘damage.’” However, the order itself referenced only the “damage” as violating Section 7. Key for the Board, there was no language restricting application of the policy.

Postings that criticize management. The NLRB affirmed an ALJ’s ruling that five nonunion employees were unlawfully discharged for social media postings that criticized management.

Courtesy policy. A court found a “Courtesy Policy” in an auto dealership’s handbook violated Section 7. The policy stated: “Everyone is expected to be courteous, polite, and friendly to our customers, vendors, and suppliers, as well as to their fellow employees. No one should be disrespectful or use profanity.” 

Although this seems like a reasonable policy for a car dealership, Trainor says, the Board ruled that the employees could reasonably interpret the policy as forbidding protected activity. And nothing in the policy or handbook limited its application.

Handbook disclaimers. The Acting General Counsel issued a complaint alleging unfair labor practice based on a handbook “at-will” disclaimer. An ALJ followed suit in another case. The problem? The disclaimers essentially said the at-will relationship could not be altered. Therefore, employees could reasonably interpret them to mean that they could not alter the at-will relationship through unionization.

Fortunately, the Acting General Counsel then found two (seemingly similar) disclaimers were lawful. He also said the law was unsettled in this area, so stay tuned for additional guidance on that issue.

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