May 26, 2020

Many employers ask us if they can prevent employees from discussing work-related issues such as salary, benefits, and work conditions. 

The short answer? No.

Can employees discuss wages? Yes.

Now, you may be wondering why and what you can do when these discussions do happen. 

First, check out this quick video in which we provide a quick explanation of the National Labor Relations Board (NLRB) and the concerted activity law:

We’re going to explain a bit more about exactly what is protected concerted activity, what it is not, and what you as an employer can and can’t do about it.

What is Protected Concerted Activity?

can-employees-discuss-wages-300x225-8397734Employers CANNOT prevent employees from discussing work-related issues, such as:

  • Talking with one or more coworkers about wages, benefits, or other working conditions
  • Circulating a petition asking for better hours
  • Participating in a concerted refusal to work in unsafe conditions
  • Openly talking about pay and benefits
  • Joining with coworkers to talk directly to an employer, government agency, or the media about workplace issues

These are considered protected concerted activity according to the NLRB. This means you cannot forbid employees from discussing salaries or other job conditions with one another in either verbal or written form.

These discussions are protected regardless of whether employees are talking to each other in person or via social media, which we’ll discuss in more detail in another post.

What about a single employee?

A single employee may engage in protected concerted activity if he or she is:

  • Acting on behalf of other employees
  • Bringing group complaints to the employer’s attention
  • Trying to induce group action
  • Seeking to prepare for group action

What is NOT covered?

If an employee: 

  • Says or does something grossly offensive or knowingly and maliciously false
  • Publicly bad-mouths an employer’s products or services without relating their complaints to any labor issues

He or she can lose protection, opening them up to legal disciplinary action from the employer. 

The NLRB’s January 2019 ruling in Alstate Maintenance, a case regarding an employee who protested in a group, also says that “individual griping” is not protected concerted activity. This decision signaled that many concerted activity cases involving individual griping won’t be considered, which gives employers a bit more confidence in handling similar situations.

Basically, this ruling states that just because an employee speaks out in a group does not mean that he or she is protected. As the NLRB reviews certain cases, professionals recommend that employers still proceed with caution when disciplining employees for actions taken in a group setting.

What Can Employers Do?

As we know, conversations about salary can lead to jealousy and hostility among coworkers, particularly when they don’t understand the reasons for the salary differences. We know we’ve talked a lot about what you can’t do as an employer, but how can you avoid these negative discussions and issues in the first place? 

talking-about-salary-and-benefits-1-300x200-1734875The best way to get ahead of these situations is to establish a positive and transparent working relationship with your employees. You can do this by:

  • Paying people fairly in the first place.
  • Fostering an environment of trust where employees are comfortable approaching management or HR personnel with questions or concerns about salaries or other working conditions.
  • Being open with employees about their wages and job potential by tell them what steps they can take to help them grow within your company.

Create a Compensation Strategy

You should have a compensation strategy in place to help with all of the above. This means detailing how pay decisions are made. Create an outline of this pay structure based on company policies, job descriptions, and industry standards. Be sure to conduct regular salary reviews to ensure yours are in line with the marketplace.

The main factors to consider when deciding compensation usually include:

  • Base salary
  • Merit increases
  • Bonuses
  • Commissions
  • Benefits
  • Shifts or hours at work
  • Specialized skill sets

At the end of the day, transparent practices will help you maintain a positive and productive work environment while avoiding negative discussions about pay and other issues.

How Can Your HR Team Help?

We understand that no matter what, rate of pay can be a touchy subject. That’s why BlueLion is here to help you with:

  • Managing the process 
  • Mediating discussions about pay
  • Establishing a compensation structure
  • Updating or creating a handbook that is NLRB compliant

Contact us at 603-818-4131 or today! Our HR professionals will be happy to help you create a positive work environment and a clear pay structure.

The information on this website, including its newsletters, is not, nor is it intended to be legal advice. You should contact an attorney or HR specialist for advice on your individual situation.