A provision in fictional ACME, Inc.’s employee handbook states:

“All employees are strictly prohibited from discussing their salary or wage information with one another. Violation of this policy may lead to discipline up to and including termination.”

This provision, or one similar to it, is undoubtedly found in handbooks or other work rule documents in many workplaces. Is there a problem? Yes—and it could become more pronounced if not rectified soon by ACME and/or other employers.

Many employers are surprised to learn that the National Labor Relations Act (“NLRA”) applies to non-union workplaces. It does, and Section 7 of the NLRA guarantees that all employees, regardless of union status, have the right to engage in “concerted activities for the purpose of . . . mutual aid or protection.” This means that all employers, both union and non-union, are prohibited from interfering with their employees’ right to discuss terms and conditions of employment, including wages and benefits, with each other.

In a relatively recent National Labor Relations Board decision, the NLRB found that an employer’s “Confidentiality” rule, which prohibited employees from discussing disciplinary information and salary, “plainly infringes upon Section 7 rights” as it “explicitly restricts discussion of terms and conditions of employment.”

Now that we know stifling discussion about wages and benefits risks violation of the NLRA, what about other ramifications?  Another consideration after the jump.

Consider:

Two employees are overheard “gossiping” about (or even exchanging e-mails about) a manager’s perceived sexually inappropriate comments. The HR Director, who overheard (or intercepted) the exchange writes them up for their gossiping.

Problem? It could be.  In a factually similar case the NLRB held that HR’s disciplinary action was considered a directive not to engage in the protected activity of discussing “conditions of employment” with co-employees, and therefore a violation of the NLRA.

Under the current administration, it is particularly important for employers and HR professionals to ensure their policies are not violating the NLRA, as President Obama seeks to strengthen the NLRB by adding a third member. Currently, there are only two members, and some courts find that decisions rendered by a two-member NLRB panel are not valid. Though the Obama administration is having some difficulty getting a third member of the NLRB confirmed, there are a few safe assumptions: (i) the NLRB will lean toward more employee-friendly positions, and (ii) increased funding being provided to the NLRB will result in stepped-up enforcement activity against employers. Employers and HR professionals should take care to review policies, and train other decision-makers on NLRA subtleties and compliance.