It seems like common sense — if you don’t want your employees distracted by money talk, just ban them from discussing how much they make with their co-workers. Right? Well, as per usual, common sense is not consistent with the National Labor Relations Act (NLRA).
In order to be legally protected, an employee’s communication must be concerted, which the National Labor Relations Board (NLRB) defines as “when 2 or more employees take action for their mutual aid or protection regarding terms and conditions of employment.” Or, even more simply, when the employees are discussing “we” instead of “me”.
Using that definition, it was generally understood that “I make this salary and I need a raise” is not concerted, but “I make this salary and we need a raise” is concerted. Not anymore.
In Alternative Energy Applications, Inc., 361 N.L.R.B. slip op. 139 (Dec. 16, 2014), the National Labor Relations Board (NLRB) recently held that wage discussions are “inherently concerted” and thus automatically protected. The simple version of the facts of the case are that an employee asked for a raise, management gave him one but told him not to tell his co-workers. A co-worker complained (via his mom, but that’s a different blog post!) that the original employee told him he received a raise so new employee wants one too. A month later, the company fired the original employee, purportedly for performance reasons. The NLRB ruled against the company and essentially concluded that the original employee was fired for discussing his wages in violation of the Act.
How to avoid this mess? First, employers should ensure that they do not have any formal or informal policies in place that discourage the discussion of wages, and that managers are trained on refraining from prohibiting such talk. It also is wise to document legitimate grounds for any discipline imposed.
Author’s contact info:
Meredith S. Campbell
Co-Chair, Employment and Labor Group, Shulman Rogers
mcampbell@shulmanrogers.com | T 301.255.0550 | F 301.230.2891
