A lot of “compensation tips” arrive in my inbox, from a lot of well-meaning folks, some of whom you probably consider to be “experts.” One of today’s includes a tip cautioning employers about their rules banning talk about salaries. Basically, they call telling employees not to talk about pay a waste of time, because with social media things get posted everywhere. I agree, of course, but will also offer the following, much more specific, advice (normal caveat here that while I am an attorney, this is not intended to be, nor should it be construed as, legal advice concerning any specific situation):
1. Check your employee handbook and personnel policies for any language, no matter how vague, that tells or suggests to employees that they not talk about their wages, benefits or any other terms and conditions of employment.
2. Delete anything you find.
3. Make sure that all managers know that they should not be discouraging employees from discussing things related to their employment with other employees or anyone else.
Under well established law, in particular the National Labor Relations Act (NLRA), employees cannot be prohibited from discussing their wages, benefits, or anything else related to their terms or conditions of employment. Having a specific policy banning such conversations is seen as being a direct violation of the Act and could very well subject the organization to an Unfair Labor Practice charge, with its incumbent fines and penalties. Please remember, the NLRA applies to all employees, whether or not they have a union representing them.
The current administration is focusing on strict enforcement of employment regulations, and the National Labor Relations Board is at the forefront of the efforts. Some commentators suggest that the NLRB is overstepping their bounds, but unfortunately, we won’t know until there are test cases. In this case, it’s easy. There is long standing case law and interpretation of the NLRA, and no one is fighting it.
You may not want to spend the money, but I strongly advise all organizations to have their human resources policies, and employee communications documents like handbooks, thoroughly reviewed by an attorney in your jurisdiction that has expertise in this area. Once you get on the list of one regulatory agency, assume the others will be knocking on your door soon. Stay off the lists.