Can an employer enforce rules that prohibit employees from discussing their pay and working conditions?

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Can an employer enforce rules that prohibit employees from discussing their pay and working conditions?

Some employers have rules that prohibit their employees from discussing their pay with other employees. In some cases, employees have been fired for sharing this information. Other employers have policies that prohibit employees from engaging in discussions that disparage the employer or question the employer’s employment practices.

The National Labor Relations Act (NLRA) applies to most employers and prohibits policies that prevent employees from discussing their “terms and conditions of employment.” Terms and conditions of employment include discussions about pay, benefits, management practices and actions, employer policies and working conditions. If the company’s policy can be viewed as discouraging or preventing an employee from discussing these issues, it may violate the NLRA.

Discussions that are protected by the NLRA are not limited to just face-to-face discussions. Discussions that occur on social media are also protected as long as they are directed toward co-workers and are intended to generate “concerted” action – that is, a group effort of some type to improve the conditions. For example, an employee’s post on Facebook that the employer had “messed up” and that she was “done being a good employee” that included profanity was found to be protected conduct under the NLRA. In that case, co-workers commented on the post that they were “right behind” her and that they were also upset. Others made negative comments about the employer’s hiring practices. The nature of the comments and the follow-up by co-workers were a concerted action that warranted protection under the NLRA.

In contrast, “griping” or general complaints about a manager or policy are not protected. Statements that are not directed toward co-workers, but are sent to friends and family, for instance, are also not protected.

Employees who are disciplined or terminated by their employer for having these types of discussions may have a claim against the employer. Claims that an employer violated the NLRA must be filed with the closest Regional Office of the National Labor Relations Board and must be filed within six months of the impermissible action.

Craig Henry PLC assists employees who have been disciplined or terminated for engaging in discussions regarding their working conditions.

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