16 Nov Wage and Political Discussions In the Workplace – Okay or Not?
Although both types of conversations are usually intensely personal and sensitive and can be areas of disagreement and conflict between employees, should an employer consider prohibiting them? Generally, probably not; but the underlying laws and regulations that speak to these questions need to be understood. Let’s take a look at some of the whys and hows for each type of discussion.
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 his or her wages or other terms and conditions of employment. Prohibitions of this nature infringe upon employees’ protected rights under Section 7 the National Labor Relations Act (NLRA).
Specifically, Section 7 (29 U.S.C. § 157) of the National Labor Relations Act (NLRA), gives all employees the right to “engage in concerted activities”, including the right to discuss their terms and conditions of employment with each other. Similarly, Section 8(a)(1) of the NLRA (29 U.S.C. § 158(a)(1)) makes it an unfair labor practice for an employer to deny or limit the Section 7 rights of employees. Based upon those two provisions, the National Labor Relations Board (NLRB) has taken the position for decades now that employers may not prohibit employees from discussing their pay and benefits, and that any attempts to do so actually violate the NLRA. Moreover, courts have basically uniformly supported that position. Also, those particular sections of the NLRA apply to both union and non-union employees, so there is no exception made for companies where employees are non-unionized.
The protections provided by the NLRA are broad. Here 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.
Despite the seeming inflexibility of the NLRB’s position regarding policies against pay and benefit discussions, there are some limits, as explained below:
- First, the manner in which employees exercise their rights to discuss wages or benefits matters. The law entitles employees to have such discussions but does not require employers to allow employees to do so during times they are supposed to be working. However, singling pay discussions out for prohibition, while allowing other types of conversations unrelated to work, might be evidence of intent to violate employees’ Section 7 rights, so employers should be careful in that regard.
- Second is content of such discussions. Certain employees may have benefits that could potentially involve privacy issues under other laws, such as the ADA or HIPAA. Discussing such benefits in a way that involves releasing information that should be confidential under such laws, particularly in the case of two employees talking about an uninvolved third party’s medical conditions, could potentially lose the gossiping employees the protection otherwise afforded under the NLRA. The NLRB would consider whether employees were on notice that releasing such information violates company policy and the law, and also the extent to which the employer actually keeps such information confidential.
- Third and finally, is how employees obtain the salary and benefit information they are discussing. Employees discussing their own information are protected, as are employees discussing the pay and benefits of others if they obtained that information through ordinary conversations with others. However, if in order to get the pay and benefit information they discuss with others, they access offices or files known to be off-limits to them or cause others to break access restrictions and give them confidential information; and the company has clearly taken steps to restrict the information and uphold its confidentiality, then they may well find themselves unprotected by the NLRA if they are disciplined or even discharged for participating in the access violation. A major case on point is that of N.L.R.B. v. Brookshire Grocery Co., 919 F.2d 359 (5th Cir. 1990).
Generally speaking, we strongly recommend that employers immediately eliminate any written or unwritten policy telling employees that discussion of wages is discouraged or prohibited or that wages are confidential; and also discontinue any written or unwritten policy of disciplining or terminating employees for this behavior.
Employers can limit political speech and associated conduct that is not work-related—provided they don’t infringe on protected Section 7 rights or applicable state laws. (Section 7 of the National Labor Relations Act giving employees the right to talk about the terms and conditions of their employment and the right to unionize.) While this law protects some political activities, it doesn’t give employees the right to discuss politics that aren’t work-related during work hours.
Accordingly, it is recommended that the focus of any policy and/or progressive discipline be limited to on job performance rather than political discussions specifically. If an employee spends too much time engaged in extra office chat, regardless of the topic, they’re probably not meeting all their job position expectations. If nothing else, they’re distracting others. By prohibiting and/or addressing excessive chit-chat generally, an employer avoids creating the appearance of targeting political speech and it reduces instances of other disruptive speech and behavior.
Employers are also able to tell employees that all conversations should be held with indoor voices and that non-work-related topics should be reserved for break areas where they won’t be distracting those who need to focus.
If we can assist you specifically as an HR Compliance Partner, reach out. We are here to help.