Certain workplace behavior policies might seem entirely reasonable to have in your employee manual. But reasonableness is in the eye of the beholder, and if the beholder is the National Labor Relations Board, seeing eye-to-eye may require some adjustment. One such behavior policy centers on employees discussing their wages among themselves. Here's what you need to know.

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Can You Stop Employees from
Comparing Their Wages?

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There are many legitimate reasons why two of your employees — with
roughly equal job responsibilities and possibly even the same title — are paid
different wages. One basic example might be job performance. Or the answer
could lay in the labor market conditions at the time each of the employees
was hired. Then again, it could be that the employees only believe their jobs
are similar, when in fact, they aren't.
Whatever the reasons, it's not hard to predict that if two employees who
think they do the same job begin to compare paychecks, trouble can soon
follow. That's why some employers forbid or discourage workers from
divulging their wages to each other. To avoid workplace squabbles, it may
seem like a good idea to create a policy, formal or informal that prohibits this
topic of discussion.

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In fact, many employees believe they are barred from talking about pay. In a
survey taken a few years ago by the Institute for Women's Policy Research,
nearly one quarter of respondents were under the impression they are
specifically prohibited from talking about their wages (whether or not there is
a formal policy). In reality, implementing such rules might be illegal,
depending on the particulars of the policy and the state you operate in.

4. Protected Speech
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Section 7 of the National Labor Relations Act (NLRA) "protects non-
supervisory employees who are covered by the Act from employer retaliation
when they discuss their wages or working conditions with their colleagues as
part of a concerted activity to improve them," according to a Department of
Labor "fact sheet" on the topic.

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The Labor Department also explains that these protections remain in place
"even if there is no union or other formal organization involved in the effort.“
The term "concerted activity" has been defined and redefined numerous
times by courts in labor dispute cases. Basically, it involves "two or more
employees acting together to improve wages or working conditions,"
according to the NLRB.
In a March 18, 2015 memo to the Board's enforcement personnel, the NLRB's
top lawyer wrote that even "well intentioned" employee policy manuals can
inadvertently contain rules "that would inhibit employees from engaging in
activities protected by the [NLRA]."

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Here are three examples included in the memo:
• "Do not discuss customer or employee information outside of work,
including phone numbers and addresses.“
• "Sharing of overheard conversations at the worksite with your coworkers,
the public, or anyone outside of your immediate work group is strictly
prohibited.“
• "Discuss work matters only with other employees who have a specific
business reason to know or have access to such information.“
• "If something is not public information, you must not share it."

7. Vague Language
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The problem with such language, said NLRB General Counsel Richard F. Griffin
Jr., is that employees reading it could "reasonably" assume that the ban
covers terms and conditions of employment. Similarly, "a confidentiality rule
that broadly encompasses 'employee' or 'personnel' information, without
further clarification, will reasonably be construed by employees" to restrict
their rights under the NLRA, the memo states.

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Language, on the other hand, that clearly refers to other kinds of proprietary
business information, such as a client list or trade secret, would pose no
problem if prohibited.
As noted, the NLRA's restrictions on pay confidentiality rules apply only to
non-supervisory employees. The law also does not cover public sector and
nonprofit religious organizations.
Last year, an effort to implement a broader federal ban on "pay secrecy" rules
— called the "Paycheck Fairness Act" — failed to pass muster in Congress.
However, President Obama subsequently issued an executive order
prohibiting federal contractors and subcontractors from firing or disciplining
any employee on the basis of disclosing his or her compensation to another
employee.

9. States Weigh In
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Meanwhile, California, Colorado, Connecticut, the District of Columbia,
Illinois, Louisiana, Maine, Minnesota, New Hampshire, New Jersey and
Vermont have their own laws against punishing employees for discussing their
pay.
For example, California's Labor Code (Section 232) includes these points: "No
employer may do any of the following:
a) Require, as a condition of employment, that an employee refrain from
disclosing the amount of his or her wages.
b) Require an employee to sign a waiver or other document that purports to
deny the employee the right to disclose the amount of his or her wages.
c) Discharge, formally discipline, or otherwise discriminate against an
employee who discloses the amount of his or her wages."

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This doesn't mean that employees have unfettered rights to talk about their
wages and working conditions. Generally speaking, employers can limit
employees from discussing these topics while they are at work, as opposed to
on their own time.
However, to be safe, check with a labor law expert on variations where your
business is located,
In the event that an employee gains unauthorized access to payroll files and
then discloses wage information, that employee can be subject to discipline.
The same is true if an employee divulges compensation information that is
deemed private under HIPAA or the Americans with Disabilities Act.

11. What to Do
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How can you legally discourage employees from comparing notes on pay?
Taking a broader approach, the Texas Workforce Commission offers the
following suggestion, which employers in and outside of Texas might find
helpful: "In the context of a general discussion about the importance of
devoting oneself to work during work hours, counsel employees that it is all
right to discuss various things at work … but that as in most things,
moderation usually works best, and there is a fine line between being
informative or conversational and being a busybody, a time-waster, or
perceived as self-important.“
The Commission also encourages employers to let employees know when
their pay and benefit practices are competitive. "The more that employees
know where they stand, and the more they feel that they have a stake in the
company and its success, the less need they will feel to spend time talking
about their pay and benefits."

12. Ask a Local Expert
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Once again, because laws vary by location, you need to know what your state
allows. To avoid running afoul of the law, check with a labor law expert in
your area to find out what your state has to say on the subject.

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