Does this policy sound familiar?
“Salary information is strictly confidential. Your salary or anyone else’s should not be discussed with other employees or other unauthorized persons, on or off the job. Failure to adhere to this policy may result in immediate termination of employment at discovery of the first offense.”
This policy, and many others similar to it, is typical of what we find in policy manuals we review for dentists. While your wording may differ, this policy exists in hundreds of reviewed manuals. It is also one of the first policies that we recommend be removed.
While it is understandable that employers want employees to remain quiet about their compensation, the laws are quite clear that enforcement of this principle is prohibited.
The National Labor Relations Act (NLRA)
Congress enacted the NLRA in 1935 to protect the rights of employees and employers, to encourage collective bargaining, and to curtail certain private sector labor and management practices, which can harm the general welfare of workers, businesses and the U.S. economy. This act applies to both union and non-union employers.
Section 7 of the NLRA gives all employees the right to “engage in concerted activities,” including the right to discuss their terms and conditions of employment with each other. Section 8 makes it an unfair labor practice for an employer to deny or limit the Section 7 rights of employees. Based upon those two provisions, the National Labor Relations Board (NLRB) has taken the position for decades that employers may not prohibit employees from discussing their pay and benefits. Courts have basically uniformly supported that position.
The following states have enacted their own laws supporting the NLRA: Michigan, California, Colorado, Illinois, Louisiana, Maine, Minnesota, New Jersey, Vermont, and New Hampshire. While the language is different in each state, the message is the same – “pay secrecy” policies are against the rules.
With the advent of social media, numerous cases have now come before the NLRB related to employers discharging or otherwise adversely affecting employees’ employment when they have used social media sites as a platform for discussions, maybe even complaints, about their employer. In most of these cases, the NLRB has ruled in favor of the complaining employee and made it clear that it doesn’t matter if discussions are in-person or online, they’re all protected.
Limitations on Rights: It’s Not All Bad News
As of now, there is nothing in the either the federal or state laws allowing employees to discuss these issues during times they are supposed to be performing work. Caution must be taken to avoid double standards. Don’t exclude pay and working conditions as a topic of conversation and allow other types of conversations unrelated to work to occur. This could be viewed as evidence of intent to violate protected rights of employees.
Employees cannot divulge information that should otherwise remain confidential under laws like HIPAA even if they are also discussing their own working conditions, benefits, and pay. It may be appropriate to apply disciplinary action, or terminate employment, if this occurs. You will need to be diligent about your written policies and related documentation in order to prove that the action you took was due to the protected breach of confidentiality and not about the employee discussing his/her own pay and benefits.
Finally, these protections do not extend to an employee discussing someone else’s pay and benefits unless the information was obtained through ordinary conversation with others. These protections do not provide employees with the right to share confidential information about other employees, or gain unauthorized access to files or records about other employees and divulge it.
Whether it’s federal or state regulations, laws protect employees related to discussing such matters as pay and benefits. While you cannot prevent these discussions, you can create an environment in which this won’t be as big of an issue. You can start by promoting all that is right within your practice. Employees should know that your pay and benefit programs are competitive and meet or exceed the industry standard. Have clear advancement opportunities, merit increases, and strong open-door policies. When employees know where they stand and feel connected to the business and its success, they will be less likely to spend their time complaining or discussing their wages and working conditions.