Pay Secrecy

SuperDuty · March 2005

Is anyone aware of any federal laws prohibiting pay secrecy policies or prohibiting discipline if an employee breaks this policy?

TN HR · March 2005

[font size="1" color="#FF0000"]LAST EDITED ON 03-09-05 AT 03:14PM (CST)[/font][br][br]It is largely considered to be in violation of the NLRA, constituting an unfair labor practice. This can be a very lenghty discussion. What is it that you are trying to accomplish?

Gene

BTW, welcome to the forum! Not trying to be short with you, however, there are certain permissable scenarios where an employer can have a wage confidentiality policy, however, enforcing it is another thing. The courts have viewed an employee communicating about his/her wages to be a protected concerted activity. So, perhaps if you can tell us more about the situation and what you are trying to accomplish, many of the seasoned pro's here can give you some great advice.

SuperDuty · March 2005

We are a non-union private org and have this as a policy. In most situations we may come across someone breaking this policy, but we have a discussion with them letting them know this is not acceptable and it no longer is an issue.

Currently we have an individual (administrative clerk) who has continued to discuss her pay even after several conversations with HR. We want to get this stopped, but caution ourselves due to the same belief you wrote that this is largely considered an unfair labor practice.

HRinFL · March 2005

This is hard to police. As an ee, you should not discuss particular ees pay rates. However, in every place of employment, ees talk, and routinely talk money. This is hard to control. If someone complained that people are talking about what they make, address it wth those ees and explain that it is not an acceptable conversation. Explain that continuing this discussion will lead to disciplinary action and then follow through if it happens again. You can only address those situations that you are aware of, so it would be hard to say that you can enforce this consistently.

dchr9203 · March 2005

It is a protected activity under the NLRA in a union environment. Private secor employers are discouraged from these types of policies for that reason, but there are no laws prohibiting it that I am aware of. Our employee Handbook simply states that salaries are considered confidential by the company and will only be discussed by company representatives with those who have a need to know (ie. employee, HR and direct upline management). During the employee orientation I bounce on it and let them know that if they discuss it and it creates a problem for them because Suzy Q doesn't make the same as John D then its their own problem. It will not be discussed with them by any company representative. Of course, if I hear about the discontent, I'll go back and evaluate to ensure fair pay practices, but in general the complaints are petty and have no merit.

TN HR · March 2005

The NLRA extends this protection to non-union employees as well. There are several cases out there where this has been reinforced, including a landmark one out of the 6th Circuit.

Gene

SMace · March 2005

You cannot prohibit employees from talking about their wages. It is protected as concerted activity under the NLRA. If three people are getting together to talk about THEIR wages, you can't legally stop it.

Now if your personnel clerk is telling everyone's wage that is different.

Don D · March 2005

One person, two people, three people, union, non-union....yada yada yada. It is a fact that an employer cannot prohibit its employees from discussing their wages, period. It matters not whether you are union or non-union or whether the conversation involves two people, three or thirty three. Employees have the right under law to discuss the conditions of their employment, including discussion of their wages. Any employee could make a telephone complaint with the National Labor Relations Board at one of its regional offices. Such complaints are not ignored.

HRinFL · March 2005

I agree that ees have the right to discuss the conditions of their employment and that those discussions are "concerted" activities - as TN HR mentioned. I guess I view what conversations meet the criteria to be "concerted" or related to the conditions of employment differently.

If ees are talking about the fact they do not believe that the compensation for their position is fair/competitive, etc., I think it is protected. If they discuss that XYZ company pays people in similar positions more money and that they should get the same level of pay, I think it is protected. If they talk about their "intangibles" - benefits, retirement, etc., I think it is protected.

I do not think that Don and Gene standing around the water cooler commenting on how much money Ray makes is protected. I do not see any correlation with Don and Gene's conditions of employment that would afford them protection for talking about Ray's rate of pay. Add Ray to the equation and it is a different story. I do not believe that ees have the right to dicuss other people's compensation. That is confidential information. If Ray tells them how much he makes - good for him. Otherwise I would tell Don and Gene that it is not appropriate to discuss another ees pay and that they need to stop. JMHO.

dchr9203 · March 2005

I agree.

ray a · March 2005

HRinFL, does that include the kickbacks that Don and I get from forum membership fees?

HRinFL · March 2005

It depends Ray, is that a regular bonus that you receive based on your efforts to enroll new members, or is a promissary kickback from James for good behavior and therefore, not guaranteed? x}>

Don D · March 2005

Your water-cooler scenario is hollow. Look at it this way; If a friend and I are standing around the 'bubbler' conversing and you hear a comment from one of us about what we think Ray's salary is, go ahead and haul us in and run us up the disciplinary flagpole. Then sit tight while we call the New Orleans NLRB office and report it to the local union organizer.

Fast forward three weeks and we're in a hearing. "Yes sir, I did mention Ray's salary. Ray had asked me earlier that morning if I thought it was fair that he made less than Ophelia Butts who does the same job." "Yes sir, I was suspended for three days for that and we have been talking about our wages for almost a year, cause we don't think we are paid fairly. They just over reacted when they heard me mention Ray and he came running around the corner like a bull elephant pointing at me and hollering, "Ha, gotcha now!" First thing I knowed, I was home without pay for three days."

The point here, with the NLRA, as patrolled by the NLRB, it does not matter one whit what the employer's representative 'THINKS' or where the employer 'MIGHT' like to draw the line. Those sorts of notions will only incite these young NLRB lawyer-agents and get them booked at the motel closest to your facility for a couple of weeks.

The number one thing that gets places organized is a heavy handed notion by the employer and his representatives that they have a right to exercise certain unreasonable controls over its employees and their actions (like speech and conversation). THE ANSWER TO UNION FREE ENVIRONMENTS IS "REMOVING THE ISSUES", NOT PUTTING THEM IN PLACE!

HRinFL · March 2005

I admit that dealing with unions is not an area of great experience for me, we are not unionized and have a separate labor relations area. My involvement is normally reactive, as I would be responsible for investigating ULPs etc. I do have a familiarity with the laws in this area, but do not routinely deal with these issues. We are a well respected employer and do not have these issues to regularly address. Therefore, I defer to the southern gentlemen (Don and PORK), even though Don called my example hollow. x:D

Your argument makes sense, I will defnitely look at this in a different light now. Even though there are circumstances where this discussion may not be anyone acting as a "representative" for a group, or involved in "concerted" dialogue, you are right, we would tell the truth, but we cannot expect others to do the same. That unfortunately, is the sad truth.

Don D · March 2005

Understand that nothing personal was meant. Anyone in HR needs to understand the realities of this scenario. Whether or not you have a union or have a separate labor relations area in your company, YOU must know what the law is. Not dealing with this subject on a regular basis does not absolve you from responsibility. And please quit wiggling around with the notion of someone acting as a 'representative' for a group and 'concerted' activity. You cannot and will not win in a forum where these terms are legally defined and dissected. You may not have seen these NLRB wizzards in action. I have! They will not give one wit what your notion is of "representation" or "concerted". You simply do not argue semantics with the NLRB. Your best bet is to understand that your employees do have the right to do certain things and there is nothing you can or should do about it. There are other fish to fry.

pork1 · March 2005

HRinFL: I agree, but you can't take it personal but Don is so right as he so eloquently states below. It is kinda like the rules of "Discrimination", the EE can make any claim he/she wants and "DAMN" we have to defend our actions. Lots of us out here in the woods maintain the rule "of no talking about wages" and hold our breath that the phone call never gets made. Our work force is very close to the "food handler union", my position, when challenged, is going to be the company will rid our system of the policy, yesterday. I have been asked by a couple of managers for the right to terminate employees for these discussions and I have stopped them from any adverse personnel actions with these individuals. If there is no adverse personnel action ever taken, then maybe the rule will stop some of the discussions that cause us problems.

GOOD LUCK, you do not want to face the NLRB, I have once and it was not fun. We removed the rule and the issues went away, we were lucky. My current company wanted to keep this rule in place when I came. Against my advice, it remained in set of work rules, but it has never been exercised and I hope that it never does before I retire, one more time in about 5 more years.

PORK

Shadowfax · March 2005

Not only is it a vio of NLRA as others have stated - you have the whole constitutional first amendment right of the ee to talk to anyone he wants too about his wage. This is an absolute loser, and anyone who even mentions it in the context that ees are prohibited from discussing thier pay with others is just asking for greif, if you make any attempt to enforce it.

Gillian3 · March 2005

Finally, attempts to enforce secrecy will create rumors about what the company is trying to hide and speculation about how pay really is. It's not worth the hassle.

Don D · March 2005

And finally, after G3's 'finally', it will matter not one wit that you are a well respected employer who has no union involvement or that you had no prior union organizing experience. (Although I grant you some solace for those nice facts). The NLRB will seize you by the nap of the neck and the union organizer in the green '88 Camaro will wreak havoc at your parking lot entrance.

And even if you don't have an organizing campaign, the least of it may be the virtual embarassment of having to post on all of your bulletin boards, for 45 days, a notice to the effect that you violated the NLRA by telling employees they could not discuss their wages. Believe me, it will happen. You do not need the embarassment. Peace x:-)

Pay Secrecy

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