Does your company have a policy that forbids employees to disclose their wages to each other? If so, please get help understanding the requirements of the National Labor Relations Act (NLRA). Section 7 of the Act gives all employees, not just union employees, the right to engage in “concerted activities for collective bargaining or other mutual aid or protection.” This provision has been interpreted to protect nonunion employees who question the terms and conditions of their employment.

As a result, the National Labor Relations Board (NLRB) and the courts have affirmed the rights of nonunion employees to discuss their pay and to complain about their work environment.

The NLRB has sued employers for having employment policies whose confidentiality provisions it deems overly broad. Forbidding employees to compare and discuss their wages and other elements of compensation infringes on their ability to engage in concerted activity to seek higher pay and improved working conditions.

A policy does not even have to be in writing to violate the NLRA; it need only be orally communicated to employees. At least one federal court of appeals has upheld the NLRB’s ruling that an employer violated the NLRA because its managers orally instructed employees not to discuss their wages.

Even a policy requiring employees to keep all internal investigations “strictly confidential” has been deemed by the NLRB and some courts as violating Section 7.

It is appropriate to keep some investigations, such as employee misconduct and sexual harassment, strictly confidential. It is vital for employers to understand which types of investigations are and are not appropriate. It is also vital to use internal investigators who are well-versed in this high-risk arena.

Give us a call! We’d love to help you.

Stuart Blake
Mobile – (949) 842-9379
sblake@innovacounsel.com

Michael Oswald
Mobile – 208.914.3086
moswald@innovacounsel.com

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