Decoding Concerted Activities: A Guide for HR Professionals and Leaders - Part 2

The right to discuss wages generally applies to employees under the National Labor Relations Act (NLRA), which includes most private-sector workers, whether unionized or not. However, managers and decision-makers are typically not covered under the NLRA's protections for concerted activities. Here's why and how it works:

1. Who Is Covered?

• The NLRA protects employees who are not classified as supervisors or managers.
• Managers and decision-makers, as defined by the NLRA, are individuals who:Have the authority to hire, fire, discipline, promote, or make other employment-related decisions.Use independent judgment in their supervisory responsibilities.

Since managers and decision-makers act as representatives of the employer, they are generally excluded from NLRA protections, including the right to engage in concerted activities like discussing wages.

2. Can Managers Discuss Their Own Wages?

Managers and decision-makers can discuss their own wages, but this activity is not protected under the NLRA. If they face retaliation for discussing wages, they would not be able to claim protection under the NLRA.

That said, other laws outside the NLRA may provide protections for wage discussions:

• Equal Pay Act (EPA): Prohibits wage discrimination based on gender and supports transparency in pay practices.
• National Labor Relations Board (NLRB) Guidance: Wage discussions by employees that are intended to improve workplace conditions may still be scrutinized under anti-retaliation laws.

3. Can Employers Prohibit Wage Discussions for Managers?

Employers may create policies restricting managers and decision-makers from discussing wages, particularly when it involves confidential salary data about other employees. For instance:

• If a manager has access to salary information of subordinates, they are expected to maintain confidentiality to protect the employer’s interests.
• However, employers should exercise caution to ensure such policies do not overreach or inadvertently discourage transparency or compliance with other wage laws.

4. Best Practices for Employers

• Clarity in Policies: Employers should clearly state whether and how wage discussions are restricted for managerial staff, ensuring compliance with federal and state laws.
• Compliance with Transparency Laws: Ensure that restrictions on managers discussing wages do not conflict with state pay transparency laws.
• Avoid Overreach: Policies restricting wage discussions should be limited to confidential or proprietary salary information, not personal discussions about an individual’s own pay.

5. Key Takeaways

• Employees can freely discuss their wages under NLRA protections.
• Managers and decision-makers, as representatives of the employer, are generally excluded from these protections.
• Employers must tread carefully when creating policies to ensure they do not violate other laws promoting wage transparency.

In summary, while employees are broadly protected when discussing wages, managers and decision-makers operate in a different legal framework and are not granted the same rights under the NLRA.

Elga Lejarza

HRTrainingClasses.com

HRDevelop.com

Lejarza HR Consulting