Concerted activities trump confidentiality: revising employee policy for NLRB compliance.

AuthorBirdsall, Richard
PositionHR Matters

Company Alpha, as do many companies, has annual performance reviews timed with decisions regarding pay increases, if any. The amounts can vary depending upon each employee's performance. Because the pay increases are tied to performance, Alpha likes to keep the salary and pay increase information confidential. Accordingly, Alpha has a policy requiring employee confidentiality with respect to their salary and benefit information.

Employee Bravo observes a number of coworker evaluations on his boss's desk along with their respective pay increases. Bravo passes the information on to the affected coworkers but, of course, word leaks out. Alpha disciplines employee Bravo for breaching its policy regarding pay and benefit confidentiality. Bravo cries "foul." Is there a problem here?

An HR client, Patricia, posed this particular question citing the case of Brookshire Grocery versus National Labor Relations Board, the genetic facts of which you have just read.

My initial thoughts were that such limitations must be okay. After all, I have observed restrictions such as this in numerous employee handbooks. So many of us couldn't be wrong--right? Furthermore, what do the National Labor Relations Act and the NLRB have to do with non-union shops?

CONCERTED ACTIVITIES

Section 7 of the NLRA (29 U.S.C [section] 157) guarantees employees the right to engage in "concerted activities for the purpose of collective bargaining or other mutual aid or protection." Section 8(a)(1) of this same act makes it an unfair labor practice for an employer to interfere with section 7 rights. "Concerted activities include matters of common concern (citations omitted) which includes the right to discuss wages," (Brookshire). There is little doubt this can be comfortably extended to discussions about working conditions as well.

In translation, even though you may be a non-union employer, employees have protections to enable discussions that could lead to potential unionization. Wage-and-benefit discussions fall into this category. Therefore, an employee handbook or manual that prohibits employees from discussing their personal wages and benefits with coworkers restricts "concerted activities" for the purpose of collective bargaining or other mutual aid or protection...

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