Appeals Court Says Yes, Employees CAN Openly Discuss Wages

By Eric B. Meyer

Over the past several years, seemingly, we’re seen the National Labor Relations Board take a more active interest in employee handbooks.

We’ve certainly seen it with respect to social media policies; especially, where these policies purport to limit the rights of employees to discuss their employment with one another. This is because Section 7 of the National Labor Relations Act allows employees to discuss their terms and conditions of employment together.

And you don’t need to have a union either. The act applies in most every private-sector workplace.

Wages not considered to be confidential information

So, whether it’s employees gabbing about how their workplace sucks, or how they are being underpaid, you can’t forbid that.

This holds true even if you have a workplace policy which categorizes wages as “confidential.” The NLRB won’t have any of that.

And, most recently, the Fifth U.S. Circuit Court of Appeals based in New Orleans reaffirmed it in this case, by underscoring that “a workplace rule that forbids the discussion of confidential wage information between employees patently violates section 8(a)(1) [of the Act].”

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Indeed, even a workplace rule that doesn’t expressly lump wages into the definition of “confidential information” can still be overbroad and, therefore, unlawful.

The company’s “confidentiality” policy highlighted in the Fifth Circuit opinion didn’t mention wages explicitly. Instead, it precluded discussion of company “financial information, including costs.” Both the NLRB and the Fifth Circuit concluded that an employee could reasonably construe this language to preclude discussion of wages.

Therefore, when drafting your confidentiality policy language, consider carving out wages and benefits specifically, or more narrowly defining your confidential information so that a reasonable person wouldn’t read the policy to preclude discussion of their paycheck.

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.

You know that scientist in the action movie who has all the right answers if only the government would just pay attention? Eric B. Meyer, Esq. gets companies HR-compliant before the action sequence. Serving clients nationwide, Eric is a Partner at FisherBroyles, LLP, which is the largest full-service, cloud-based law firm in the world, with approximately 210 attorneys in 21 offices nationwide. Eric is also a volunteer EEOC mediator, a paid private mediator, and publisher of The Employer Handbook (www.TheEmployerHandbook.com), which is pretty much the best employment law blog ever. That, and he's been quoted in the British tabloids. #Bucketlist.

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