Workplace Policy Prohibiting Salary Discussions Deemed Unlawful

A National Labor Relations Board (“NLRB”) administrative law judge (“ALJ”) held that an employer’s “confidential information” rule prohibited employees from discussing wages, and therefore violated Section 7 of the National Labor Relations Act (“NLRA”). FN1

Section 7 of the NLRA protects the rights of employees to form or join unions, bargain, or otherwise engage in concerted activities for their mutual aid or protection.FN2 Lowe’s Home Centers, LLC involved a challenge to a confidentiality rule that (1) required employees to “maintain the confidentiality of information entrusted to them” by the company, and (2) defined “confidential information” to include “salary information.”

Applying the NLRB’s updated test for analyzing employee handbook policies,FN3 the ALJ found that the policy could be interpreted to prevent employees from discussing their salary, and that “any rule prohibiting employees from discussing salary information [was] per se unlawful.” The ALJ ordered the company to rescind the unlawful rule and notify employees of the change.

Practical Takeaway

Although we believe employers have greater flexibility to craft workplace policies with a Republican-majority NLRB in place, broad employee conduct policies continue to put employers at risk of unfair labor practice charges. This is the case even when policies are not at all designed or intended to curtail employee rights, and is particularly the case with rules that arguably discourage employees from talking about their wages. Employers should review confidentiality and conduct policies, with the help of knowledgeable counsel as necessary, to assess whether their policies comply with the NLRB’s current law.

We will keep you posted with the status of the Lowe’s Home Centers case, in the event the employer appeals the decision to the NLRB.

Footnotes:

FN1: Lowe’s Home Centers, LLC, NLRB ALJ, Case 19-CA-191665, 4/17/18 (April 17, 2018 decision available athttps://www.nlrb.gov/case/19-CA-191665).

FN2: 29 U.S.C. § 157; see also https://www.nlrb.gov/resources/national-labor-relations-act. Section 8(a)(1) of the NLRA makes it an unfair labor practice “to interfere with, restrain, or coerce employees in the exercise of” their Section 7 rights. NLRA § 8(a)(1), 29 U.S.C. § 158(a)(1).

FN3: The Boeing Company and Society of Professional Engineering Employees in Aerospace, IFPTE Local 2001, 365 NLRB No. 154 (Dec. 14, 2017). For our discussion of the Boeing Company decision, seehttp://www.rockymountainemployersblog.com/blog/2017/12/22/nlrb-upends-obama-era-legal-test-for-employee-handbook-rules).