Is it illegal?

Is it illegal for the company to explicity ask employees not to talk about pay (increases, bonus amounts, etc.). In the past, our company has included a paycheck insert each time there's a raise or bonus which has the following language:

"This note is given for your information only and is intended to be kept confidential."

We are not a unionized workforce.


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  • I think your note is probably OK, as long as you do not have a policy stating an employee will be disciplined for talking with others about pay.

    The court has deemed that forbidding an EE from talking about pay with other EEs is illegal, as it is prohibiting them from union organizing activities. Even though your workforce is not unionized, if they ever wanted to become union, they would have to discuss pay, and a disciplinary policy forbidding such behavior would be illegal.

    Good luck!
  • As has been discussed here before, the National Labor Relations Act provides that it is an unfair labor practice or employers to "interfere, restrain, or coerce employees in the exercise of the rights guaranteed in section 7." The rights guaranteed in Section 7 have been interpreted to include the right to discuss one's own wages or the terms and conditions of their employment with other employees. So, in short, yes, it constitutes an unfair labor practice to explicitly ask employees not to discuss their pay.

    The National Labor Relations Board (NLRB) has held (and the Court of Appeals for the DC Circuit has agreed) that even a general confidentiality provision can constitute an unfair labor practice, even without an explicit reference to wages or discipline. The provision in that case read: "We honor confidentiality. We recognize and protect the confidentiality of any information concerning the company, its business plans, its partners, new business efforts, customers, accounting and financial matters."

    In that case, even though there was no evidence that the company had ever disciplined any employee for discussing wages, nor was there evidence that any employee actually had interpreted the policy to prohibit the discussion of wages, the NLRB and Court of Appeals found that the policy constituted an unfair labor practice because an employee could reasonably interpret language prohibiting the release of “any information concerning the company,…its partners,…accounting and financial matters” to prohibit the discussion of information concerning wages.

    In your case, you have an insert *with the pay stub* that states that the information is to be kept confidential. In my opinion, that's even riskier than the general confidentiality language found to be unlawful by the DC Court of Appeals.

    Kimberly A. Klimczuk, Esq.

    Editors of the Massachusetts Employment Law Letter
    (413) 737-4753 Email: [email][/email]

    This message is not intended as legal advice and does not establish an attorney-client relationship. Readers of this email are encouraged to contact their labor and employment counsel for further information.
  • I think I can guess why you have inserted that statement into the pay stub but just for fun, why have you?

  • Paul, Paul, Paul... the answer to that question is way more fun than the forum can handle!!

    Actually, I couldn't give you a firm reason. I've mentioned in previous posts that I "inherited" my HR role which was previously vacant/neglected/farmed-out-to-various-managers for 6 years until I arrived. There are a lot of quirky things that have happened in the past for which no one seems to remember (or fess up to) the initial impetus. (I think they have selective memories...)
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