In the business law courses I teach at Boise State, I often ask students if they work for an employer who enforces a secrecy policy that prohibits them from discussing their wages with each other. Almost always, at least a few students raise their hands.
Perhaps one of these students works for your business.
After the show of hands, I ask students whether such a policy might violate the National Labor Relations Act, which governs labor relations in most private industries. The usual answer is "No, because I'm not in a union."
Perhaps you, as a business owner, just had the same thought.
So you think the NLRA does not apply to your business because your workforce is not unionized? Think again. The act grants rights to many employees, not just those who belong to a labor union.
Yes, the NLRA applies specifically to union activity. Section 7 grants employees the right to self-organize, to form or join labor organizations, and to bargain collectively with their employer. This is the essence of protected union activity. Employers who interfere with employees' exercise of these rights have committed an illegal unfair labor practice.
However, Section 7 also gives employees the right to engage in concerted activities for "other mutual aid or protection," not just union activity.
Let's look at the term "concerted activity." Generally, it means two or more employees acting together. One employee, acting alone and on her own behalf, is not covered by the act. One employee acting for herself and others, or two or more employees acting together, are.
Next, consider the term "other mutual aid or protection." The National Labor Relations Board, the federal agency charged with administering and enforcing the NLRA, has held recently that various employment practices unrelated to union activity have violated the act.
In one recent case, the employer, Quicken Loans Inc., included a clause in its employment contract that prohibited employees from disclosing confidential information, including personal information such as phone numbers and addresses, to any person.
A nondisparagement clause prohibited employees from publicly criticizing, ridiculing or disparaging the company through any written or oral statement.
When Quicken tried to enforce this contract against a terminated employee, she challenged the provisions before the board.
The administrative law judge hearing the case found that both provisions violated the NLRA.
The broad nondisclosure policy violated the law because it created a chilling effect on employees' right to discuss working conditions with each other.
The nondisparagement clause violated employees' right to criticize their employers (in some circumstances) and to appeal to the public for support.
Other recent NLRB cases involve rulings against employers who tried to limit what employees could post on their Facebook pages, who employees could speak to about the company, and what types of communication employees could engage in with government agencies.
How does this apply to your business? How might you draft an employment policy that both protects your business and honors your employees' right to engage in protected concerted activity?
The policy language should be carefully and concisely written. Unless you have a clear business justification for doing so, it may be wise to avoid limiting employees' ability to discuss wages, benefits or other working conditions.
Your policy also should include a disclaimer stating that the policy is not intended to discourage or prohibit protected Section 7 activity.
As always, you should consult a good employment law attorney or HR specialist for guidance in drafting your policy before communicating it to employees.