Can an employer prohibit employees from discussing their wages?
March 22, 2018
This topic comes up more often than not. In fact, we still come across handbooks that have polices prohibiting employees from discussing their wages and repercussions for doing so include termination. Prohibitions of this nature infringe upon employees’ protected rights under Section 7 of the National Labor Relations Act (NLRA). NLRA rules state that employers may not prohibit, or even discourage, employees from discussing their wages with one another. Likewise, employers may not in any way discipline or retaliate against an employee for discussing their wages or other terms and conditions of employment.
The NLRA grants all employees (not just those in unions) the right to organize and engage in “concerted activity . . . for the purpose of mutual aid or protection.” This includes discussions about wages, benefits, managers, facilities, safety issues, and just about anything else that two or more employees might have a stake in, or opinion about. As a result, the protections provided by the NLRA are broad. Below are a few examples of protected activity:
- Employees discussing how much they are being paid, whether via email, break room chat, or a conversation on someone’s Facebook wall;
- Individual employee complaints regarding wages or employment conditions, if they reflect general workforce discontent or are attempting to elicit the support of co-employees to correct a problem;
- Employees discussing improving working conditions with other employees;
- Circulating a petition asking for better hours;
- Participating in a concerted refusal to work in unsafe conditions;
- Employees joining with co-workers to talk directly to the employer, to a government agency, or to the media about problems in the workplace.
The National Labor Relations Board (NLRB), which rules on cases related to NLRA violations, has been saying loud and clear – since the 80’s – that discussion of wages is an absolutely protected right. Distributing or enforcing a policy to the contrary is akin to having a policy that says the employer doesn’t pay minimum wage or overtime.
Based on NLRB rules, we strongly recommend that employers refrain from any written or unwritten policy telling employees that discussion of wages is discouraged or prohibited, or that wages are confidential, and also recommend that employers discontinue any written or unwritten policy of disciplining or terminating employees for this behavior.