Over the past several years, seemingly, we're seen the NLRB 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.
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 National Labor Relations Board won't have any of that.
And, most recently, the Fifth Circuit Court of Appeals reaffirmed it in this case [an enhanced version of this opinion is available to lexis.com subscribers], 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]."
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 article was originally published on Eric B. Meyer's blog, The Employer Handbook.
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