Can I Write Up an Employee for Talking About Their Salary?

· 5 min read

It's HR Tuesday!

A couple of weeks ago, there was a great discussion online… This text opens a new tab to the Facebook group… about what to do with employees who gossip about salaries at work. In fact, that discussion was so good, we at CEDR HR Solutions wrote an entire article… This text opens a new tab to the article about salary talk… about it. After all, nothing can deflate workplace morale quite like hovering around the front desk comparing salaries at work. You may be tempted to avoid the problem altogether by telling employees not to discuss salary with each other at all. The problem is existing federal legislation gives American employees a legal right to discuss their salaries… This text opens a new tab to the article on salary talk… with other employees.

During the online discussion, we couldn’t help but notice several misunderstandings about the legality of reprimanding employees who talk about their salaries, particularly at small practices and in at-will states. At CEDR HR Solutions, we’re dedicated to helping dental practices, both big and small, stay compliant with state and federal regulations. So, today, we’re here to answer all your questions about employees who dish about wages in the workplace.

How do I keep my employees from talking about how much they make at work?

It is not only legal for one employee to discuss their wages with another employee, you should keep in mind that because of the existing National Labor Relations Act… This text opens a new tab to the act… (NLRA), employees have a federally protected right to discuss their employment conditions, including salaries and wages, with each other at work. Whether it’s a write up or a verbal warning, any attempt to prevent employees from talking amongst themselves about how much they make has a VERY high chance of being seen as an NLRA violation. It doesn’t matter if your practice is big or small, unionized or not, you cannot prevent… This text opens a new tab to the article about salary talk… employees from discussing their salaries with one another and should not take punitive action if they do.

What is NLRA legislation?

The NLRA or National Labor Relations Act… This text opens a new tab to the act… is a large, ever-developing area of federal law that’s rapidly changing the way you can regulate your employees’ speech, both on and off the job. Section 7 of the NLRA grants union and non-union employees alike the right to engage in certain activities so they may collectively bargain. Whenever and wherever two or more employees discuss their salaries with each other amongst themselves, that speech is federally protected. This includes around the office, on company trips, during after-work drinks, and even on social media.

I live in an at-will state, so this doesn’t apply to me, right?

While it is a popular misconception that at-will states can fire anyone for any reason, that’s not what “at-will” actually means. First of all, every single state with the sole exception of Montana has at-will employment. So being at-will isn’t the big “out” or “exception” a lot of employers believe it to be. At-will means that you and the employee have an employment relationship at the will of both parties. There’s no promise of a set timeframe of employment nor any requirement that either party give notice of or have “cause” for ending that relationship. It allows you to end the employment relationship for any legal reason. Termination based on discussing pay is NOT a legal reason.

Can’t I just put something in my employee handbook or have staff sign a non-disclosure agreement?

A handbook that bans discussions about wages between employees is in violation of the NLRA even if that policy never gets enforced. While a non-disclosure agreement can be used to protect some sensitive information about your practice from people outside your practice, it does not and cannot apply to employees who talk about their salaries with other employees. Whether it’s in a handbook or a non-disclosure agreement, you cannot ask employees not to talk about their wages with their co-workers. Handbooks and non-disclosure agreements do not exempt you from existing legislation. In fact, they just make a tidy paper trail for litigators.

What if I only have a couple of employees?

The truth is you only need two employees talking amongst themselves to have an infraction of this federal legislation. In fact, this law also protects one single employee who speaks on behalf of another employee, say, in a collective bargaining situation. When it comes to federal NLRA legislation, the size of the practice does not matter.

Conclusion

Hopefully, by now, you understand that you shouldn’t interfere with employees when they discuss salaries with each other at work. It should also be clear that a small practice in an at-will state is subject to the same federal law as anywhere else. But, it’s not all bad news. In our blog post… This text opens a new tab to the article on salary talk…, we outline a few things you can do to reduce resentment among employees if and when they find out what others are being paid in your office. More importantly, if your existing policies or understanding of how all this works is different from what you read here, you might want to consider a CEDR membership. As a CEDR Member, you can consult with the HR experts in the CEDR Solution Center who can provide one-on-one guidance to help you navigate ever-developing legislation like the NLRA.

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